Fifth Circuit Affirms Right to Discuss Conditions of the Job

Originally published by Thomas J. Crane.

The National Labor Relations Act has always protected a worker’s right to discuss “terms and conditions” of employment. Sec. 7 of the NLRA protects the right of workers to discuss conditions at their job. Sec. 7 of the NLRA is found at 29 U.S.C. § 158(a)(1). 

But, because labor unions are so rare in the country now, very few people are aware of this right. The right applies even before a union is formed. When the NLRA was passed into law, Congress recognized that to form a union, workers would have to discuss problems at work. I last discussed those Sec. 7 rights here. The Fifth Circuit has recently re-affirmed the right to discuss conditions at work. In the case of In-N-Out Burger v. NLRB, No. 17-60241 (5th Cir. 7/6/2018), some fast food workers demonstrated solidarity with a national movement to raise the minimum wage to $15. The workers wore buttons with the slogan “Fight for $15” to work.

Management then cited a company rule that forbade workers from wearing any pins or stickers on their work uniform. The workers complied. Someone filed a complaint with the NLRB. The NLRB found the burger chain to have violated Sec. 7. The Fifth Circuit agreed. Despite the rule against buttons, the burger chain requires its workers to wear holiday themed buttons at Christmas time and a donation button in April seeking donations to the In-N-Out Foundation. The burger chain argued that “special circumstances” under the NLRA would allow them to implement rules regarding food safety and to project a certain “public image.”

The appellate court was not impressed. It reviewed the history of Sec. 7, noting its critical role in forming labor unions. It noted that “special circumstances” under the NLRA pertain to work place safety. The no pins or buttons rule had no direct connection to the company’s desire to presenting consistent menu and ownership structure at each restaurant. Prior cases law does not support a “special circumstances” privilege in regard to buttons and interacting with the public. And, the use of a Christmas button and a donation button undercut the company’s claim that “special circumstances” required that uniforms be button free. The appellate court found in favor of the NLRB. See the decision here.

Overcoming Sec. 7 is very difficult. In-N-Out Burger wasted a lot of effort.

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