IN-N-OUT BURGER, INC.

National Labor Relations Board - Board Decisions

Mar 21, 2017

365 NLRB No. 39 (N.L.R.B. 2017)

365 NLRB No. 39
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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, find-
ings,1 and conclusions in part, to reverse them in part,2 to

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 cumu-
lative, and that it is unnecessary to pass on that allegation. Acting
Chairman Miscimarra agrees that the Respondent’s instruction to em-
ployee Crowder violated Sec. 8(a)(1), and an additional 8(a)(1) viola-
tion 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-
amend the remedy, and to adopt the recommended Order
as modified and set forth in full below.3

paring rigorous enforcement of the rule to “a drill sergeant at boot
camp” and characterizing the Respondent’s brief as arguing that “indi-
viduality 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 pre-
sented insufficient “public image” evidence to render lawful the Re-
spondent’s indication that employees could not wear a small “Fight for
Fifteen” button on their uniforms. However, Acting Chairman Misci-
marra 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 Respond-
ent’s prohibition against buttons and pins, in part, because the judge
contrasted the Respondent’s business (involving the sale of hamburg-
ers, french fries, and soft drinks) with W San Diego, where the employ-
er’s policy against buttons and pins was associated with the preserva-
tion of a public image involving a “wonderland effect.” Acting Chair-
man Miscimarra believes that the judge’s analysis, in this respect, cre-
ates 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 mainte-
nance of a public image that, in turn, could constitute “special circum-
stances” justifying a restriction on buttons and pins. Acting Chairman
Miscimarra also believes the judge erroneously reasoned that the Re-
spondent’s “public image” defense was undermined by evidence that, at
the Respondent’s direction, employees sometimes wore employer-
supplied 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 re-
striction on buttons and pins, an employer’s “public image” can legiti-
mately 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 declin-
ing 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 employ-
ees at all of the Respondent’s 300-plus restaurants, and the Respon-
dent’s brief made repeated references to the importance of the “con-
sistency” 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 em-
ployees from wearing, while on duty, any button or in-
signia 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 protect-
ed 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, re-
straining, 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 pro-
hibits employees from wearing any button or insignia
without making an exception for buttons or insignia per-
taining to wages, hours, terms and conditions of em-
ployment 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 dis-
tribute 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 re-
quiring 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
recommended Order to require that the Respondent post a notice at all
locations where the overly broad policy was in effect.
In addition, we shall further modify the recommended Order to con-
form to our findings and our standard remedial language, including to
provide for written notice to the affected employees that the unlawful
rule has been rescinded and to order compliance with the requirements
of J. Picini Flooring, 356 NLRB 11 (2010), regarding electronic distribu-
tion of the notice. We shall substitute a new notice to conform to the
modified Order.
against him in any way, and take similar remedial steps
with respect to any other employee, including David
Nevels, to whom it gave similar instructions.
(d) Within 14 days after service by the Region, post at
its facility in Austin, Texas, copies of the attached notice
marked “Appendix A,” and at all of its other locations
nationwide, copies of the attached notice marked “Ap-
pendix B.”4 Copies of the notices, on forms provided by
the Regional Director for Region 16, after being signed
by the Respondent's authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, post-
ing on an internet or intranet site, and/or by other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice marked “Appendix A” to all current
and former employees employed by the Respondent at
that facility at any time since April 17, 2015. Similarly,
if the Respondent has gone out of business or closed any
of its other facilities, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice marked
“Appendix B” to all current and former employees em-
ployed by the Respondent at any of the affected facilities
at any time since April 17, 2015.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 16 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 21, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member

4 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in Appendix A and B reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
IN-N-OUT BURGER, INC. 3
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain and enforce a rule that prohib-
its employees from wearing, while on duty, any button or
insignia apart from those we have 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.
WE WILL NOT direct 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.
WE WILL NOT direct employees that they may not wear
any button or insignia pertaining to wages, hours, terms
and conditions of employment or union, or other protect-
ed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the rule in our appearance policy that
prohibits employees from wearing any button or insignia
without making an exception for buttons or insignia per-
taining to wages, hours, terms and conditions of em-
ployment or union, or other protected activities.
WE WILL furnish all employees nationwide with inserts
for the current appearance policy that (1) advise that the
unlawful appearance policy has been rescinded, or (2)
provide the language of a lawful rule; or publish and dis-
tribute 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.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful in-
struction and/or warning we gave to employee Brad
Crowder requiring him to remove a button pertaining to
terms and conditions of employment from his clothing and
WE WILL, within 3 days thereafter, notify Brad Crowder in
writing that this has been done and that the warning will
not be used against him in any way, and WE WILL take simi-
lar remedial steps with respect to any other employee, in-
cluding David Nevels, to whom we gave similar instruc-
tions.
IN-N-OUT BURGER, INC.
The Board’s decision can be found at
www.nlrb.gov/case/16–CA–156147 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT maintain a rule that prohibits employees
from wearing, while on duty, any button or insignia apart
from those we have approved, and that makes no excep-
tion for buttons or insignia pertaining to wages, hours,
terms and conditions of employment or union, or other
protected activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the rule in our appearance policy that
prohibits employees from wearing any button or insignia
without making an exception for buttons or insignia per-
taining to wages, hours, terms and conditions of em-
ployment or union or other protected activities.
WE WILL furnish all employees nationwide with inserts
for the current appearance policy that (1) advise that the
unlawful appearance policy has been rescinded, or (2)
provide the language of a lawful rule; or publish and dis-
tribute 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.
IN-N-OUT BURGER, INC.
The Board’s decision can be found at
www.nlrb.gov/case/16–CA–156147 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Bryan Dooley, Esq., for the General Counsel.
Bruce J. Sarchet, Esq. (Littler Mendelson, P.C.), of
Sacramento, California, for the Respondent.
Alicia Junco, Esq., of Houston, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. The
Respondent maintained and enforced a rule prohibiting
employees from wearing any unauthorized button or insignia,
including buttons and insignia pertaining to wages, hours, terms
and conditions of employment or union, or other protected
activities. The Respondent failed to carry its burden of proving
that special circumstances justified making an exception to the
general rule that Section 7 of the Act gives employees the right
to wear such buttons and insignia. The Respondent's
maintenance and enforcement of this overly broad prohibition
therefore violated Section 8(a)(1) of the Act.
Procedural History
This case began on July 10, 2015, when the Charging Party,
Mid-South Organizing Committee, filed an unfair labor
practice charge against the Respondent, In-N-Out Burger, Inc.,
with Region 16 of the National Labor Relations Board. The
Region docketed this charge as Case 16–CA–156417.
On October 30, 2015, the Charging Party filed another unfair
labor practice charge against the Respondent. The Region
docketed this charge as Case 16–CA–163251. On February 16,
2016, the Acting Regional Director for Region 16, acting
pursuant to authority delegated by the Board's General Counsel
(here called the General Counsel or the government) issued an
order consolidating cases, consolidated complaint, and notice of
hearing (the complaint). The Respondent filed a timely answer.
On April 25, 2016, a hearing opened before me in Austin,
Texas. The parties presented evidence on that day and the next,
when the hearing closed. Thereafter, the parties filed briefs,
which I have carefully considered.
Admitted Allegations
In its answer, the Respondent admitted a number of
allegations. Based on these admissions, I find that the General
Counsel has proven the allegations in complaint paragraphs
1(a), 1(b), 2, 3(a), 3(b), 5, 6, and portions of complaint
paragraphs 4, 7(a), and 7(b).
More specifically, I find that the Charging Party filed and
served the charges as alleged in the complaint.
Further, I find that the Respondent is a California corporation
engaged in the retail sale of fast food and that it has a restaurant in
Austin, Texas. Additionally, I conclude that the Respondent
meets the statutory and discretionary standards for exercise of the
Board's jurisdiction.
Respondent has admitted, and I find, that Store Manager Nick
Palmini and Second Manager Daniel Moore were, at relevant
times, its supervisors and agents within the meaning of Section
2(11) and (13) of the Act, respectively. A “second manager” is an
assistant manager.
Based on Respondent's admissions, I find that, since about July
10, 2015, it has maintained the following work rule:
NAME TAGS/PINS
1. Each Associate should wear a nametag at all times
during a shift. Temporary nametags should be worn no
IN-N-OUT BURGER, INC. 5
more than a maximum of two weeks and should be red &
white in color (red letters only).
2. Attach nametags to the shirt or blouse on the flap
beside the pen/pencil pocket.
3. Nametags must be clean and not worn-looking (es-
pecially the logo), and must be the most current style.
4. Wearing any type of pin or stickers is not permitted.
5. Nametags must use only formal or well-established
proper first names. Nicknames or slang names are not
permitted. If an Associate is not normally addressed by
their formal first name, only another “recognized” first
name may be used. For example, if the Associate's formal
name is Robert Charles Johnson, but he has always been
called “Chuck,” he may use “Chuck” on his nametag. In
this example, “Chuck” is generally recognized as a first
name and would not be confused as a nickname. Names
such as “Butch” or “Fanny” are clearly nicknames and are
not permitted.
The Respondent also admitted portions of complaint
paragraphs 7(a) and 7(b). Those admissions will be discussed
below.
Contested Issues
Respondent owns and operates a chain of fast food
restaurants, including in Austin, Texas. It requires employees
to adhere to a dress code which includes the provision, quoted
above, prohibiting employees from wearing “any type of pin or
stickers.” Complaint paragraphs 7(a) and 7(b) allege that
Respondent's supervisors told employees to remove “Fight For
$15” pins they were wearing. These pins express support for a
campaign to raise the minimum wage to $15 per hour.
The complaint further alleges that the Respondent's
prohibition on wearing buttons and its instructions to
employees to remove the “Fight For $15” buttons violate
Section 8(a)(1) of the Act by interfering with, restraining, and
coercing employees in the exercise of their rights under Section
7 of the Act. In general, and with exceptions discussed below,
the Respondent admits the alleged conduct. However, it
maintains that it did not thereby violated the Act.
Complaint Paragraphs 7(a) and 7(b)
Complaint paragraph 7(a) alleges that about “April 17, 2015,
at Respondent’s facility located at 4515 Airport Blvd., Austin,
Texas 78751, Respondent, by its agent Daniel (last name
unknown), ordered employees to remove a Fight for 15 button
or face unspecified consequences.”
Complaint paragraph 7(b) alleges that on about April 18,
2015, “in the manager's office at Respondent’s facility located
at 4515 Airport Blvd., Austin, Texas 78751, Respondent, by its
agent Nick Palmini, ordered employees to remove a Fight for
15 button pursuant to the rule described in Paragraph 6 or leave
Respondent's facility.”
Respondent's answer stated that it “admits that one or more
associates1 at its Austin, Texas store have been directed to
remove items from their uniforms which are not part of the In-
N-Out uniform. Except as specifically admitted above,
Respondent denies each and every remaining allegation of
paragraph 7 of the Complaint.” “The Respondent has admitted
that its supervisors have engaged in the type of conduct alleged
in complaint paragraphs 7(a) and 7(b) but does not admit the
specific alleged incidents.
To prove the allegation in complaint paragraph 7(a), that on
April 17, 2015, a supervisor named Daniel told an employee to
remove a “Fight For $15” button, the government relies on the
testimony of Amanda Healy, a former employee of the
Respondent who worked at the Austin restaurant. Although
Healy described a conversation she had with the second
manager, Daniel Moore, her testimony does not establish that
he told her to remove the button.
Healy testified that she did wear a “Fight For $15” pin to
work on April 17, 2015, but that no manager spoke with her
about it on that day. According to Healy, when she again wore
the pin to work the next day, Moore asked her about it:
Q. Okay, and do you remember how that conversation
began?
A. Yes. He—first he noticed it, and kind of was just ask-
ing me about it, and why I was wearing it. And then, after I
answered, he asked if I thought Nick would be okay with me
wearing it, and I said, “I believe so, but from what I under-
stand—I—I don’t believe he is able to ask me to take it off,
so I don't think he would,” is what I said.
Q. Do you remember exactly what you told Mr. Moore
about what the button was?
A. Yeah, just what I had said earlier, that it’s the “Fight
for $15” fast food workers working for a higher minimum
wage, living wages.
Q. And you said Moore asked you whether Nick
would—
A. Whether I thought Nick would be okay with—
Q. and can you identify Nick?
A. Nick is our manager, our Store Manager, Nick Pal-
mini.
Q. Thank you. And how did that conversation end? Did
anything else happen?
A. Not that day.
Moore testified that he did not recall this conversation. The
parties entered into a stipulation that on about April 17, 2015,
Moore told an employee that a button supporting the fight-for-
15 movement was not part of the In-N-Out uniform. Based on

1 The record establishes that the Respondent calls its employees “as-
sociates.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
that stipulation, I find that Moore did make the statement
quoted in the stipulation even though he did not remember it.
Because the stipulation tends to corroborate Healy's
testimony, and because Moore did not flatly deny making the
statements Healy attributed to him but only said that he could
not remember, I believe Healy's testimony is generally credible.
Nonetheless, I have some concerns about it.
Healy did not specifically testify that Moore told her that
wearing the button was not part of the In-N-Out uniform. That
fact comes from the stipulation. However, the stipulation does
not establish that Moore asked Healy if she thought the store
manager would be “okay” with Healy wearing the fight-for-15
button. Those words come from Healy's testimony, not the
stipulation.
If Moore specifically had said that the Respondent's dress
code prohibited wearing the button, and then if he had asked
whether Healy thought the store manager would be “okay” with
her doing so, the statement and the question together arguably
would have violated the Act. In Comcast Cablevision of
Philadelphia, L.P., 313 NLRB 220 fn. 3 (1993), the Board
found that, even assuming a supervisor had not told an
employee to remove a union button, the supervisor transgressed
Section 8(a)(1) by telling employees that the button violated the
employer's uniform policy and then asking, rhetorically, if they
thought they should nevertheless wear it. The Board concluded
that the employees would understand the “rhetorical question”
to be a prohibition.
Here, the parties did not stipulate that Moore told Healy that
wearing the button violated the Respondent’s dress code.
Rather, the parties stipulated that he told her that the button was
not part of the uniform. It could be argued that Healy
reasonably would understand “not part of the uniform” to mean
“prohibited by the dress code.” However, to reach that
conclusion requires drawing an inference.
To find a violation, I would have to draw this inference, and
then draw the further inference that Healy would understand
Moore's question—did she think the store manager would be
“okay” with her wearing the button—to amount to a prohibition
on wearing the button. Thus, a decision to find a violation
would rest on two inferences.
Even though I credit Healy’s testimony, I do not believe it
includes enough detail to warrant the inference that Moore was
posing a rhetorical question when he asked Healy if she thought
the store manager would be “okay” with her wearing the
button. Very possibly, he was expressing uncertainty about
what the store manager would do. If so, presumably Healy
would have been aware of that uncertainty and would not have
understood the question to be a prohibition in disguise.
In these circumstances, I conclude that the evidence is
insufficient to establish conduct similar to that found violative
in Comcast Cablevision. More specifically, I find that the
Government has not proven that on April 17, 2015, a supervisor
of Respondent ordered employees to remove a fight-for-15
button or face unspecified consequences, as alleged in
complaint paragraph 7(a).
However, based on other evidence, including the
Respondent's admissions and the testimony of its supervisors, I
find that the Respondent maintained the uniform policy quoted
above, which prohibited the wearing of pins or insignia and that
on about April 18, 2015, the Respondent enforced this policy
by directing an employee, Brad Crowder, to remove a fight-for-
15 button, as alleged in complaint paragraph 7(b). The
testimony of Store Manager Palmini, quoted below, establishes
that he gave Crowder this instruction. Therefore, I must
consider whether these actions violated Section 8(a)(1) of the
Act.
Legal Analysis
It is well settled that an employer violates Section 8(a)(1) of
the Act when it prohibits employees from wearing union
insignia2 at the workplace, absent special circumstances. Boch
Honda, 362 NLRB No. 83 (2015), enf. sub nom. Boch Honda
v. NLRB, ___F.3d___ (1st Cir. 2016), citing Republic Aviation
Corp. v. NLRB, 324 U.S. 793, 801–803 (1945); Ohio Masonic
Home, 205 NLRB 357, 357 (1973), enfd. mem. 511 F.2d 527
(6th Cir. 1975).
An employer that prohibits employees from wearing such
insignia bears the burden of proving that such special
circumstances do, in fact, exist. Moreover, the prohibition must
be narrowly tailored to address the special circumstances
justifying an exception to the general rule.
This case therefore turns on whether, as the Respondent claims,
special circumstances existed warranting an exception to the rule
and, if so, whether the Respondent’s prohibition was narrowly
tailored to those special circumstances.
Before considering the Respondent’s evidence and argument, it
will be helpful to review the Board’s relevant caselaw. The Board
has found that special circumstances warranted an exception to the
general rule where the wearing of union insignia would jeopardize
employee safety, damage machinery or products, exacerbate
employee dissension, or, unreasonably interfere with a public
image that the employer has established as part of its business

2 In this case, the Respondent did not order an employee to remove
insignia related to a particular labor organization but rather a button
supporting a movement to increase the minimum wage. However, Sec.
7 of the Act protects more than the right to engage in union activities.
It also protects the right of employees to engage in concerted activities
for their mutual aid and protection. The message on the button con-
cerned wages, clearly a term and condition of employment. Therefore,
I conclude that the Act protected employees’right to wear this button to
the same extent it would have protected their right to wear a button
referring to a union. AT&T, 362 NLRB No. 105 (2015).
IN-N-OUT BURGER, INC. 7
plan. Boch Honda, above; Bell-Atlantic-Pennsylvania, 339 NLRB
1084, 1086 (2003), enfd. Communications Workers of America,
Local 13000 v. NLRB, 99 Fed.Appx. 233 (D.C. Cir. 2004).
The Board has stressed that the special circumstances exception
is narrow, and a rule that curtails an employee’s right to wear
union insignia at work is presumptively invalid. Quantum
Electric, Inc., 341 NLRB 1270 (2004). An employer’s status as a
retail employer does not, standing alone, constitute a “special
circumstance.” Ark Las Vegas Restaurant Corp., 335 NLRB
1284 fn. 1 (2001); Albertson’s, Inc., 351 NLRB 254 (2007).
Moreover, an employer cannot avoid the special circumstances
test simply by requiring its employees to wear uniforms or other
designated clothing. World Color (USA) Corp., 360 NLRB No.
37 fn. 3 (2004).
The relatively infrequent cases in which the Board has found
special circumstances involve unusual facts. For example, the
Board has held that a supermarket lawful could prohibit its
butcher from wearing, where customers could see it, a shirt
bearing the words “Don’t Cheat About The Meat.” Those words
could lead customers to fear that they were being cheated.
Pathmark Stores, 342 NLRB 378 (2004).
The Board held that an employer lawfully could prohibit an
employee from placing on his hardhat a sticker that was
“unquestionably vulgar and obscene” even though it related to a
union. Leiser Construction, LLC, 349 NLRB 413 (2007).
However, an employer violated the Act by prohibiting the wearing
of buttons stating “Cut the Crap! Not My Healthcare.” In the
same case, the Board held that the employer also could not ban the
wearing of a button stating “WTF Where's The Fairness” because
the “WTF”acronym would be understood to mean “Where's The
Fairness.” AT&T, 362 NLRB No. 105 (2015).
In the present case, the “fight for 15” button did not imply that
the Respondent was dishonest. It did not cast aspersions of any
sort. The button also was not obscene or even mildly vulgar.
Moreover, the Board precedents cited above hold that an
employer cannot establish special circumstances simply because it
is a retail store, and an employer also cannot establish special
circumstances by showing that it requires employees to wear
uniforms. The Respondent had to have some additional basis to
warrant making an exception to the general rule that employees
had the right to wear buttons related to their union or other
protected activities.
The Respondent relies on W. San Diego, 348 NLRB 372
(2006). In that case, the Board found that a hotel lawfully could
prohibit room service employees from wearing a button stating
“Justice NOW! JUSTICIA AHORA! H.E.R.E. LOCAL 30.” The
employer persuaded the majority of a Board panel that it was no
ordinary hotel but marketed 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.’”
The hotel dressed its room service employees in black shirts,
slacks, and apron. The Board held that if an employee wore a
button with a controversial message it would detract, or could
detract, from this “Wonderland” effect.
In the present case, the Respondent tries to squeeze itself into
the W. San Diego mold.3 However, it 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.
The Respondent’s brief states:
In-N-Out’s public image (its brand identity) has been
carefully cultivated and has remained basically unchanged
since the opening of its first store in 1948. Among the core
components of this consistent image and identity are:
The menu from 1948 included only burgers, fries and drinks,
made to order from only fresh ingredients-this remains
unchanged today. (Lang 165).
The 1948 logo was red and white with simple block
lettering-the same as today.
Glass surrounds the kitchen so that customers can see their
food prepared and handled by Associates in a sparkling clean
environment.
Excellent, warm and friendly customer service has always
been a high priority. Associates have always been paid more
than minimum wage, and paid more than their counterparts at
competing quick-service restaurants. (Lang 72).
In-N-Out has never had any franchisees. All of its stores are
Company-owned. (Lang 46).
Associates have always worn white uniforms with a limited
number of specific identified elements, and have always been
directed that they are not to take anything away from the
uniform, nor add anything to the uniform. (Lang 51-52;
Palmini 235-236).
Associates have always been subject to strict grooming
requirements.
In-N-Out's business philosophy is unique. Other quick service
restaurants use the franchisor-franchisee model, their kitchens
are not open for view, employee uniforms are dark in color,
frozen foods and microwave ovens are used, new items are

3 In addition to W. San Diego, the Respondent relies on the adminis-
trative law judge's decision in Grill Concepts, d/b/a The Daily Grill,
31–CA–126475 (2015). However, the Board, reversing the judge,
recently held that this respondent had not established special circum-
stances sufficient to make an exception to the general rule that an em-
ployer may not prohibit the wearing of union buttons. Grill Concepts
Services, 364 NLRB No. 36 (2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
constantly being added to the menu, employees are paid
minimum wage, and so on. These differences, which are all
part of In-N-Out's unique business plan, differentiate it from
other quick service restaurants and form its brand identity and
public image.
Even assuming that Respondent has tried to create a business
identity based on these factors, most of them appear irrelevant
to the issue in this case: Whether special circumstances exist
which justify making an exception to the rule that employees
may wear buttons with messages related to union or protected
activities.
For example, the fact that the Respondent has not changed its
menu or logo since 1948 has no obvious connection with
whether the Respondent has some need, based on special
circumstances, to ban the wearing of such buttons. Similarly,
although the Respondent's ownership of all restaurants bearing
the “In-N-Out” name might be relevant to a case involving a
joint employer allegation, there is no such allegation here.
The Respondent's focus on customer service also has no
apparent relevance. The record reveals no reason to believe
that wearing a button would slow an employee down or
otherwise impair the employee's ability to serve customers.
Likewise, the Respondent has established no reason why
wearing a button would make an employee less friendly or less
attentive to a customer's needs.
However, it might be somewhat relevant that “customers can
see their food prepared and handled by Associates in a
sparkling clean environment.” The Board distinguishes
between public areas where customers might see a button and
nonpublic areas where only employees are present. Because
glass walls allow the public to view the kitchen, I will assume
that all or almost all of the store constitutes a public area.
Therefore, I will apply the Board's standards applicable to
employees in public areas.
In determining whether special circumstances exist sufficient
to justify an exception to the rule, I will consider not only each
circumstance individually but also the totality of all such
circumstances together. The Respondent offers, as one such
circumstance, that employees “have always worn white
uniforms with a limited number of specific identified elements,
and have always been directed that they are not to take anything
away from the uniform, nor add anything to the uniform.” By
itself, this circumstance would not suffice, World Color (USA)
Corp., above, but I will consider it along with other
circumstances.
The fact that employees “have always been subject to strict
grooming requirements” also would not constitute special
circumstances warranting an exception to the rule. However,
the Respondent appears to be arguing that for almost 70 years,
it has presented to the public a consistent image of
immaculately groomed employees in a “sparkling clean” work
environment. Allowing an employee to wear the “fight-for-15”
button would, it argues, detract from this well-groomed/clean
image.
However, the Respondent faces a problem making this
argument. At certain times of the year, the Respondent not
only allows but requires employees to wear buttons. At
Christmas, employees must wear a button which states:
MERRY CHRISTMAS
IN-N-OUT
NO DELAY
In April, each employee must wear a button seeking
donations to the In-N-Out Foundation, a nonprofit organization
established by the Respondent's owners which focuses on child
abuse and neglect. The button states:
TEXT
“4KIDS”
TO 20222
TO DONATE
YOUR $5 WILL HELP
PREVENT CHILD ABUSE
IN-N-OUT BURGER
FOUNDATION
When an employer allows employees to wear other buttons,
it casts some doubt on any claim that special circumstances
require the employee's clothing to be button free. In Airport
2000 Concessions, LLC, 346 NLRB 958 (2006), the employer
had allowed employees to wear buttons other than the union
button it had prohibited. The Board found that it had not
carried its burden of showing that special circumstances
warranted an exception to the rule. See also Vestal Nursing
Center, 328 NLRB 87, 97 (1999).
Both the Merry Christmas button and the In-N-Out
Foundation button are from 2 to 3 times larger in diameter than
the fight-for-$15 button. Therefore, the required buttons were
significantly more conspicuous than the fight-for-$15 button,
which was only the size of a quarter.
However, the Respondent characterizes the fight-for-$15
button as an “individualized” button, that is, one chosen by the
individual employee rather than mandated by management. It
argues that allowing an employee to wear an individualized
button would have a negative impact on its ability to achieve its
mission. The Respondent's employee handbook includes this
mission statement:
IN-N-OUT BURGER, INC. 9
COMPANY MISSION/PURPOSE STATEMENT
In-N-Out Burger exists for the purpose of:
1. Providing the freshest, highest quality foods and
services for a profit, and a spotless, sparkling environment
whereby the customer is our most important asset.
2. Providing a team-oriented atmosphere whereby
goal-setting and communications exist, and to provide ex-
cellent training and development for all of our Associates.
3. Assisting all communities in our marketplace to be-
come stronger, safer and better places to live.
It is not self-evident how an “individualized” button
would negatively affect the achievement of these goals in
a way that the larger buttons did not. However, the Re-
spondent's vice president of operations, Robert J. Lang,
Jr., gave this explanation:
Q. MR. SARCHET: If I can direct your attention to Page
1 in the Company mission statement again.
A. Okay.
Q. Allowing employee—associates to wear individual-
ized button of their own choice in the workplace, would
that have an impact on your ability to meet mission state-
ment, part of your mission statement no. 1?
A. I would say yes.
Q. How so?
A. I would say, you know, it could potentially from a
food safety end, the highest quality foods.
Q. Any other ways?
A. Just one?
Q. Yeah.
A. Yeah, as far as a sparkling environment, you know,
our uniform is part of our environment, so again, it is--it
would be interfering with that image that we project.
Q. And then, number 2, would allowing associates to
add an individualized button to their uniform have an im-
pact on your ability to meet Item No. 2 on your mission
statement?
A. I would say provided a team-oriented atmosphere.
You know, we do promote teamwork and togetherness,
and all being consistent and the same, and that would
change it?
Q. How so?
A. Well, if everybody was allowed to wear what they
wanted, it would just—I mean, where would the end be.
Respondent’s argument that the fight-for-$15 button might
have an impact of food safety will be discussed later in this
decision. Here, it may be noted that Lang only testified that an
“individualized” button potentially could affect food safety.
Presumably, the potential danger would depend on the
characteristics and cleanliness of the particular button.
As noted above, even if special circumstances might justify
some exception to the rule that employees have the right to
wear buttons related to union and protected activities, the
exception still must be narrowly tailored to impinge no more
than necessary on employees' Section 7 rights. However, the
Respondent has not limited its ban to any particular subset of
buttons which might pose a particular danger but instead has
prohibited all “individualized” buttons.
Lang also suggest that an individualized button could
negatively affect achieving the Respondent's goal of a
“sparkling environment. He testified, “you know, our uniform
is part of our environment, so again, it is—it would be
interfering with that image that we project.”
Presumably, by “sparkling environment” the Respondent
means a very clean environment. The record would not support
a conclusion that the fight-for-$15 button was less hygienic
than the buttons which the Respondent required employees to
wear at specific times of the year.
If the Respondent had been concerned about the cleanliness
of buttons, it could have narrowly tailored its rule to prohibit
only unhygienic buttons or required employees to disinfect
them. Even if the Respondent meant something else other than
cleanliness by the term “sparkling environment,” presumably it
could have narrowly tailored its prohibition to address such a
concern.
The Respondent's mission statement referred to a “sparkling
environment whereby the customer is our most important asset”
so, clearly, Respondent's goal involved having a restaurant so
obviously clean and wholesome it would attract customers.
However, it was not obvious how an employee wearing a small
button would detract from this environment, so I asked Lang
for a clarification:
THE WITNESS: Well, it is not something that is normal for
our uniform at all. It is something that is different, and it is—
to me, it is just—it is not just about that button. It is about,
you know, what else would somebody want to wear, but it
is—that button could be that it is different than our uniform.
To me, it does take away.
Lang’'s testimony also suggested that allowing employees to
wear “individualized” buttons would impede the Respondent’'s
goal of having a “team-oriented environment.” However, his
explanation for why that might happen doesn't obviously relate
to teamwork: “Well, if everybody was allowed to wear what
they wanted, it would just—I mean, where would the end
be[?]”
This question—where would the end be?—mirrors Lang's
statement that “It is about, you know, what else would
somebody want to wear. . .” Lang’s testimony bolsters the
impression I formed from other parts of the record, that the
Respondent banned wearing “individualized” buttons not out of
a desire to achieve a particular business objective but out of a
fear of losing control.
Respondent maintained a stringent appearance code which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
extended even to the type of underwear an employee could
wear. It instilled this code in new employees through intensive
training administered by a computer. The computer program
began with a cheerful lecture about the importance of a
uniform. Then, it required the employee to use the mouse to
dress a virtual mannequin onscreen. When the employee made
the correct choices the computer gave him a reward of praise.
Although human beings typically program computers, in this
case the roles were reversed.
The Respondent enforces its appearance code through daily
inspections and documents the warnings it gives for infractions.
These records show that a supervisor will even warn an
employee for having a “visible hickey.”
In describing the intensity of the Respondent's insistence
upon standardized appearance I will avoid any adjective that
might carry some arguably negative connotation and instead
observe simply that it is rigorous. That may risk
understatement, except perhaps in the sense that a drill sergeant
at boot camp is rigorous. However, it is not necessary to
address why the Respondent feels so strongly about uniformity
because the Respondent has the right to choose its methods of
doing business so long as they don’t impinge unlawfully on
employees’ exercise of Section 7 rights.
The narrow question here concerns whether Respondent's strict
dress code, including its prohibition against wearing
“individualized” buttons, is to further a business plan similar to
that of the hotel in W. San Diego. The explanation given by Vice
President Lang—” it is not just about that button. It is about, you
know, what else would somebody want to wear”—does not
indicate that the Respondent was trying to create a customer
experience analogous to the alternate reality “Wonderland” of the
hotel.
To the contrary, it simply suggests a fear of losing control.
Lang's words—”if everybody was allowed to wear what they
wanted, it would just—I mean, where would the end be”—
indicate that he foresaw a slippery slope. Under such a theory, for
example, if the Respondent allowed an employee to pin on a small
button today, then tomorrow the employee might report for work
wearing a tie-dyed shirt, frayed blue jeans, and love beads. Such a
fear, however, would not justify a button ban because that
prohibition would not address the wearing of the unacceptable
clothing. Moreover, the Respondent could prohibit wearing of
such attire while allowing employees to wear buttons.
The Respondent also argues that its prohibition of
“individualized” buttons is necessary to further a “team-oriented
atmosphere.” However, it is not self-evident how wearing a small
button would affect teamwork in any way.
From its mission statement, it appears that Respondent defined
a “team-oriented atmosphere” as one which fostered goal setting
and communications. Lang's testimony did not explain how
wearing the button could affect either. However, the Respondent's
brief did offer an explanation of the relationship between the no-
button rule and “team-oriented atmosphere.” It stated:
As a part of its business plan and its public image, In-N-Out
takes steps to foster a team-oriented atmosphere in the
workplace. This is emphasized in a multitude of ways, most
predominantly in the Company's mission statement:
“In-N-Out exists for the purpose of . . . providing a
team-oriented atmosphere where goal-setting and
communications exist, and to provide excellent training and
development for all of our Associates.” (JX 2 p. 1).
Allowing individual associates to choose their own
adornments to the uniform, such as a pin or a button, would
undermine this team-oriented atmosphere. The focus would
be on the individual worker, not on the group. As an example
of just how important this is to In-N-Out, the Company
provides service pins to employees on achieving their
five-year anniversary. (Lang 186). However, individual
associates may not wear these pins on the job. Allowing them
to do so would place the focus on the individual, rather than
on the team.
The brief thus seems to argue that individuality must be
drastically suppressed, even to the prohibition of small buttons,
for a team to be effective. Were that the case, the best team
would not be human but animatronic. The Respondent’s
argument strikes me as one created after the fact, perhaps more
ingenious than ingenuous.
The Respondent's attempt to make itself resemble the hotel
in W. San Diego fails because it ignores the underlying reason
why the hotel deserved an exception to the rule. The hotel
essentially was doing theater, creating a make-believe
environment the same as actors on a stage. The main
difference was that the room service employees were the actors.
Playing a part requires an actor to suppress his own identity
and assume that of the assigned role. His costume must not
include any element that conflicts with or contradicts that
pretend identity. Under such very special and unusual
circumstances, wearing a button might indeed reduce the actor's
ability to be convincing.
However, the present Respondent is not calling upon its
employees to be actors. It is not making itself a stage upon
which to conjure an alternate reality. It is not casting its
employees for parts in a “Wonderland” or even a Fantasy
Island. It has not posted any employee out front to ring a bell
and announce “the plane, the plane!”
The Respondent is not trying to create the illusion of a
sparkling clean restaurant but rather the reality. In other words,
the Respondent's business objective is not to become something
other than a fast food burger restaurant, but rather to be the very
IN-N-OUT BURGER, INC. 11
best in its category. Therefore, its circumstances are similar to
those of other such restaurants and not special enough to
warrant an exception to the general rule.
The Respondent also argues that health and safety concerns
justify an exception to the rule that employees may wear
buttons with messages relating to union or protected activities.
Thus, its brief stated, in part:
In W San Diego, the Board concluded: “foreign objects in
food preparation areas pose risks of contamination,” and “the
danger that . . . loosely attached stickers would fall into the
food or onto food preparation surfaces constitutes special
circumstances justifying the sticker prohibition.” 348 NLRB
at 375.
However this argument is subject to question: If the smaller
fight-for-$15 button presents a health or safety risk, why don't
the larger buttons which the Respondent requires the employees
to wear?
Respondent's answer to that question is, essentially, that its
own buttons are better built. The Respondent's brief criticizes
the construction of the fight-for-$15 button:
The button at issue in this case (GCX 2) consists of two
separate pieces: a front piece, and pin mechanism which is
held into place simply by spring tension. If not properly
affixed to clothing, or if the spring tension weakens, or if the
pin becomes bent, the button could fall off of the clothing.
The button is quite small and is very lightweight. If it fell off
of the clothing, its absence might not be noticed. Associates
are quite busy during a shift, moving from one task to another,
working in virtually all areas of the store during a shift.
The Respondent's brief then goes on to laud the construction of
its own buttons:
The Company-approved buttons (RX 17, RX 19) are
materially different from the button introduced into evidence
by the General Counsel. They are significantly larger. They
must always be worn in a prominent location, on the front of
the uniform shirt above the nametag.
They consist of three pieces - a front, a back, and a pin
mechanism. The pin mechanism is affixed to the back part of
the button by passing through two small holes. The pin
mechanism of the In-N-Out-approved button is far sturdier
than the pin mechanism of the button introduced into
evidence by the General Counsel.
This argument strikes me as more impressive than
persuasive. Certainly, it demonstrates elegant advocacy to
compare the two buttons in such detail. However, the argument
might have been more convincing if I had not examined the
buttons. Discerning no apparent, significant difference in
safety, my reaction to the argument is “nice try.”
Implicit in the Respondent's argument is the recognition that
not all buttons pose a health or safety risk. The Respondent
would not require its employees to wear any button if it
considered all of them harmful. However, the Respondent has
banned all buttons other than its own without regard to their
safety. Its prohibition is not narrowly tailored to address the
perceived problem in a way that least interferes with
employees’ Section 7 rights.
Moreover, the record does not establish that Store Manager
Palmini, who directed employee Brad Crowder to remove the
fight-for-$15 button he was wearing, examined the button to
determine whether it raised any health or safety concerns.
According to Palmini, his assistant manager noticed that
Crowder was wearing the button and reported it to Palmini,
who called Crowder into his office. Palmini described the
meeting, in part, as follows:
I asked him if he was—if he knew and was familiar with the
Uniform policy, the Uniform guidelines that we have. He
said he was. I informed him that he was not—I made sure that
he understood that he was not able to add anything to the
uniform, which he said that he did. He said that—I said, that
being that that is the rule, I am going to have to ask you to
take that off. He said, okay. He let me know that he would
be making a claim with the NLRB. I asked him what that
was, because I wasn't familiar with that. He explained to me
that they are Board that oversees labor. I said, “Great.”
Neither Palmini's testimony nor that of Assistant Manager
Moore, who also was present, indicates that they made any
effort to examine the button before Palmini directed Moore to
remove it.
Palmini's testimony, which I credit, leads me to that conclude
that health and safety concerns did not cause him to tell
Crowder to remove the button. Rather, he was enforcing the
Respondent's appearance code with the rigor expected.
However, the code's ban on buttons was not narrowly tailored.
In other respects, no evidence establishes that wearing the fight-
for-$15 button did or foreseeably would adversely affect the
Respondent's business in any way. See Register Guard, 351
NLRB 1110 (2007).
The record does not establish any special circumstance
which would justify an exception to the rule that employees
generally have a Section 7 right to wear buttons with messages
related to a union or to terms and conditions of employment.
Therefore, I conclude that Respondent has not carried its
burden of establishing grounds to justify making an exception
to the general rule. United Parcel Service, 312 NLRB 596
(1993).
Accordingly, I recommend that the Board find that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Respondent violated Section 8(a)(1) of the Act by maintaining a
policy prohibiting the wearing of all buttons and insignia except
for the buttons it approved or required, and by instructing
employees to remove the fight-for-$15 button, the message of
which related to a term or condition of employment and the
wearing of which was protected by the Act.
REMEDY
To remedy its unfair labor practices, the Respondent must
post the notice to employees attached to this decision as
Appendix A. Because the Respondent owns and operates more
than 300 restaurants, a question arises concerning whether the
Respondent should be required to post the notice at all of its
facilities or just at the restaurant in Austin, Texas, that is
specifically mentioned in the complaint.
The unlawful rule appears in the Respondent's employee
handbook. It appears likely that the Respondent provided this
handbook to employees working at other facilities besides the
Austin restaurant. The General Counsel's brief argues that the
Respondent should be required to “post a notice at all locations,
including by electronic means, where the unlawful policy
prohibiting pins and stickers has been in effect.”
However, the parties have not litigated the issue of how widely
the Respondent distributed the handbook. Therefore, I
recommend that, should an issue arise concerning the scope of
notice posting, it be addressed at the compliance stage of this
proceeding. Boch Honda, 362 NLRB No. 83, slip op. at 3.
The Respondent also must rescind the unlawful prohibition and
remove it from its employee handbook. Further, I recommend
that the Board order the Respondent to provide written notice to
each current employee who received the handbook that it has
rescinded the unlawful rule. Any issue regarding which
employees should receive such notice—only the employees at the
Austin, Texas restaurant or current employees at all restaurants—
could be resolved, if necessary, at the compliance proceeding.
The written notice to be given each current employee recipient
would be separate from and in addition to the notice, set forth in
Appendix A below, to be posted in the workplace. With respect to
this latter notice, I further recommend that the Board require the
Respondent to comply with the requirements of J. Picini Flooring,
356 NLRB 11 (2010), which provides that in addition to physical
posting of paper notices, noticed shall be distributed
electronically, such as by email, posting on an intranet or internet
site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means.
With respect to the separate written notice to be given to each
recipient of the handbook who is currently employed by
Respondent, if issues arise regarding the scope or means of
notification, I recommend that such issues be addressed and
resolved at the compliance stage.
Because the Respondent maintains records of the warnings it
gives to employees for violations of its appearance policy, I
recommend that the Board order the Respondent to remove from
its records any reference to the instruction it gave to employee
Brad Crowder to remove the fight-for-$15 button from his
clothing.
CONCLUSIONS OF LAW
1 The Respondent, In-N-Out Burger, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
maintaining and enforcing a rule which prohibited employees
from wearing while on duty any button or other insignia except
for those buttons it provided, and which made no exception for
buttons displaying messages pertaining to wages, hours,
working conditions, or to union or protected activities. The
Respondent further violated Section 8(a)(1) of the Act by
enforcing this rule, and by directing an employee to remove a
button advocating an increase in the minimum wage.
3. The Respondent did not violate the Act in any other
manner alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended4
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 which prohibits employees
from wearing, while on duty, any button or insignia apart from
those it approved, and which made no exception for buttons and
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) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.

4 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
IN-N-OUT BURGER, INC. 13
(a) Rescind the rule in its appearance policy which prohibits
employees from wearing any button or insignia without making
exception for buttons or insignia pertaining to wages, hours, terms
and conditions of employment or wages, or other protected
activities.
(b) 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 against him in any way, and to take similar remedial steps
with respect to any other employee to whom it gave similar
instructions.
(c) Within 14 days after service by the Region, post at its
facilities in Austin, Texas, copies of the attached notice marked
“Appendix A.”5 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since April
18, 2015. Excel Container, Inc., 325 NLRB 17 (1997).
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official on
a form provided by the Regional Director attesting to the steps that
the Respondent has taken to comply.
Dated Washington, D.C. July 11, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
federal labor law and has ordered us to post and abide by this no-
tice.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of these rights, guaranteed to them by
Section 7 of the National Labor Relations Act.
WE WILL NOT maintain or enforce a rule prohibiting employees
from wearing, during working time, any button or insignia
pertaining to wages, hours, terms and conditions of employment
or union, or other protected activities.
WE WILL NOT tell any employee to remove a button or insignia
pertaining to wages, hours, terms and conditions of employment
or union, or other protected activities.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL immediately rescind our rule prohibiting employees
from wearing during working time any button or insignia
pertaining to wages, hours, terms and conditions of employment
or union, or other protected activities.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to any instruction and/or warning we gave
to an employee which directed the employee to remove a button
or insignia pertaining to wages, hours, terms and conditions of
employment or union, or other protected activities and WE WILL,
within 3 days thereafter, notify each such employee that the
instruction or warning will not be used against the employee in
any way.
IN-N-OUT BURGER, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/16–CA–156147 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.