the first case for today is two thousand and seventeen six zero two for one and out burger versus national labor relations board you may proce in their uniforms much as the images before you know what was more the would be more important in what we eat i mean a number up if you are an associate in your very first day on the job you get some computer based training and in that training you are told our image of person question alyssum and what the customer sees is just as important to us as the food we serve and that word image has been in that training module for decades long before anybody at the company knew there was a public image prong of the special circumstances dr so we'd see the associates busily preparing their food and we tell the adults about stuck it's kind of a retro look it's been the same for many years hasn't changed in over sixty to seventy years ye so and it's fairly strict it's you know for example if i'm wearing nail polish i wouldn't be allowed to be there is that right that's correct ok go ahead but i'm evidence even if they haven't shown it by a preponderance of the evidence then this court those deference to those factual findings examined the judge in this case concluded that basically all areas of our restaurants are open to public view there are no non public areas that finding was supported by substantial evidence in a deed the board has not challenge that finding on appeal here today but the conclusions of the law require a balancing  interests of the party parties and the ultimate conclusion upon here is that their rights of the associates to add messenger items to their uniform is superior to in an else right to maintain a project a public image and to maintain and preserve the safety of the food they serve this is a balancing between the interests of the of the worst and the company it comes from the national you know  review are you excuse me now you're not talking now about the standard yes so i am so that is a dyno standard you are looking at the balancing this court looks at the conclusion of law what's that balancing how does it turn out in the end the section seven rights of the top of my head i can't really think of one that stands out there that the board doesn't disagree that we've got a business plan that we've established a public image and that as part of that business plan we have the strict uniform policy right then we get to the sort of fourth prong of the the standard which is does allowing associates to add items to their uniform unreasonably interfere with our public image and that's really where the balancing come you didn't make an issue before the board about the content of the message yes we did it's brief to the court the image of the clenched fist and the fight for fifteen we did make it an argument about the content of the message i didn't read your brief as putting any emphasis on that that that what you objected to was the master we do object to the content of the message as well but if you study the special circumstances cases you'll see they kind of fall into the various categories and many of them are decided without even looking at the public image of that business they just really focus on the message so you go into a grocery store and you're going to buy you going to the butcher counter and the but insists don't cheat about the meat well the board didn't really look at the image that that store was trying to project they short of took a shortcut and said that message is ambiguous customers won't know how to react to it and so therefore the employer was allowed to say no you can't wear that don't cheat about the meat button at our what you can hear the image is one of a clenched fist and it also implicates the fight for fifteen movement there's evidence on the record that in and out as as part of its business plan has always paid substantially more than the minimum wage so we think the clenched fist image presents an ambiguous message and would tend to alienate customers those are two standards hostile might be in conjunction with the child abuse button that you having a problem that you can't have child abuse button and also have clinched fist but at the same time was that argument made we argued excessively about the company provided buttons yes and both but in the context of clinched fist did you present any argument about that not in conjunction with what the company bulletins provide ok but you're not standing there saying that if the button had just said fight for fifteen and it other than the words fight for fifteen at a clip the but understand no let me finish my question what it had on there was a clinched fist and fight for fifteen is that right i'm asking you whether or not if it didn't it can be an alternate it can be an alternate track we can argue with weight with but we do have a blanket ban we do have a blanket ban and those have been uphill in by the n l r b in similar situations so  determination by this court that that our work rule that bans associates from adding anything to their uniform does not violate section seven of the national labor with the list of the message on the ok so is there but there's no middle ground you're not seeking some alternative really it's only that the the the staked out position we believe the standard allows for a complete ban if you look at footnote six of the bosch honda decision they're discussing hotel they said they were trying to create this wonderingly for the guests at the hotel when they came in it's like you're being transported to some different place yeah you know right that's that word is in and hotel where you coming into a private room that arguably is that guest private space in there right yes but there are other public areas in the hotel as well checky and there's a lobby there's a valet pickup for your car these rules apply to all areas you look at their business plan and what was found to find and support special circumstances there you'll see that their business plan was we want to be a professional delivery company we want our drivers to look uniform and look the same we want our packages  those rules are presumptuously in that the rule is presumptively invalid we have the burden of proving special circumstance and what do you expect to see that we have the sparkling clean restaurant that we've established a distinct and unique public identity from other quick service restaurants so sparkling clean though in this context you're not saying it's just not dirty you're saying that it's got this kind of retro kind there's not there are tattoos there are that it's not a modern day looking that place it's not just clean like sparkling it's not easy to maintain white uniforms in this environment most of our competition is going to darker uniforms we stick with the white uniforms because they built a display that you have to say you're not the only restaurant or place that features white uniforms i mean that's a pretty standard deal so the question could then be do they all have a strict uniform policy which is part of the public image so if they're trying white uniform in a strict uniform power city then section seven is an applicable in these parts each case as facts specific you have to look at the totality of the circumstances so yeah we can cherry pick in and find little distinctions and differences between a hypothetical restaurant over here and in and out for the special circumstances when you're sparkling clean yes you get another special circumstance that's basically it that's the image that we present to the public and we're different from other vast quick service restaurants we've always paid more than minimum wage all or measures are home grown all of our food is fresh never frozen all of these things are in the public consciousness and helped create this public image that we present so is there evidence in the record that the hamburger industry is very competitive and that people are seeking out different distinctions and is that the finite in this record we didn't put on expert witness to testify to that no you didn't sure it's pretty though do you have evidence in the record that this white uniform issue that burger king and windies and mcdonald's and all of the hamburger places that we could think of smashburger and i could name a whole bunch of other ones that none of them have these white uniforms in this sparkling thing there's no evidence in the record of that but i don't think that makes a difference if you look at conway transportation and you read their basic business conway central express i'm sorry and you business plan right it doesn't say anything about a wonder it says basically that they want to achieve the same sort of things that other delivery companies want to achieve all fast food restaurants want to between they want to be consistent but that doesn't dilute the fact that we've proven special circumstances here we are different we are unique if we've got a strict uniform policy and it's designed to create a specific and unique environment that's what that in order be has said we need they don't say we need show wunderl or not we're one of the parts of our key parts of our business plan is consistency from one store to the next so what happens at one store happens at all are you saying in response to your twenty eight j letters that have been filed recently you think this should be remanded to be looked at again in light of some new authorities that have come down recently i don't think so you know the twenty a j letters were for the edification of the court that this is a time of change at the national labor relations board and there are some of grown up with this has been renamed it from the d c circuit back to the board but they had whole bunch of other stuff nails you want to tell us in support of your case well medco health solutions to it's kind of a curve ball that the board has thrown at us here at the last minute and this is creating sort of a impossible to unworkable standard they say that we have to provide specific non speculative evidence that in the image would have would effect or has affected our business and medco is actually the case that cited most frequently in the board's brief to this court and we think this is just an impossible an unworkable standard should not be it shouldn't have been adopted by the board shouldn't be utilized by this court it's a simple two part analysis do we have a strict uniform policy on the specific and unique or we think that we have shown by our i mean if this is successful it's a path to riches because you know that's going to be everybody's pension there's nothing unique about what what it is you're i don't think what it is you're telling us i mean your company is is not distinguishable from other companies and in the ass food business well i don't know i submit to you that conway central express wasn't distinguishable from other delivery companies i don't i don't think that that has to be so so if we just pick the two or three key features that you have been promoting with respect to this your copier client they promote then section seven pins are out in their work environment yes you can have a total ban special circumstances do allow that to happen it's not a per se right that employees have to add message items to their uniform it's not a per se right there's a balancing that must go on the special circumstances doctor exists for a reason so we ask that this court allow the work rule to stand i mean if you really focus on the size of the button as well you'll see kind of the that the result here could be a little bit absurd because in dubi a san diego there button worn to the hotel was larger than the button at issue here and their total ban is allowed to stand argument that was warning here is a little bit smaller and also this puts us in a catch twenty two because a smaller button may have less impact on public image but it's more dangerous for food safety at all about who's more likely to fall out more likely to not be noticed if it gets into food a larger button not so much so it kind of puts us in a catch twenty two this isn't just a special circumstances case we're talking about there though if you look at that a med co two solutions of was vegas case they tried to ban provocative insulting or confrontational buttons messages in the workplace and they and the got a loser heritage problem now that's on remand and with but with boeing in the works it's up in the here but this idea that you narrowly tailoring you write a work rule to meet these circumstances yes it could be done but we submit that it doesn't need to be done in these circumstances but if we rule against you you're not going to say you can't try to do that excuse me if we're not and we were to rule against you and seeming argue indo not foreshadowing you're not going to not try to do that and because it's i notice you have a little that is you wouldn't be able to wear that if you were workin his wrist well i might be able to because this is actually him and a lot of people and so it might be considered a company good question let's start there why does the administrative law judge have better in a better position to make a decision about whether something's a safe but then the company that seemed to be a unique feature of the ministry t your honor the administrative law judge was not faced with the dispute about the high tech piece of machinery and whether that was safe or less safe than the previous technology that had been used he was looking at a button and he was looking at another bus company but if you look at the back of that button the company describes it beautifully in its briefing but if you look at it it looks explicitly said company if you want to put on expert testimony about this button and how it's constructed you are free to do so the company did not avail itself of that opportunity  was in the record what was in the record and they have the company personnel who had given testimony that it was not safe and was like a good come off i thought they had the company person who gave to the testimony he testified to that and that's of some he's at least in that industry i agree in two out of three parts i agree there was a witness i agree that he testified i do not agree that he testified to any significant content about that fifteen but the fact that witness who was vice president land had never seen the button before the hearing he said on the record the first time i'm seeing it was not an expert on the button and i'm sorry it may not have been lang i actually it was there i believe it was power probably power maybe if not tell me more who were at the store level now they have seen not general  they had seen employee brad crowder wear different button but is the board's decision shows they never expect inspected it to term and if it was unsafe but they just say ok that runs  our policy and we're going to make you take it up is the issue that it's a fist before us the that it's a fist rather than just words is that properly before us to consider in the grand scheme of  answer no but that depends in parts part of it is not part of it might be but that depends on how strict this court's waiver rules are and you know that better than me and i do want to address that  argument now but if you'll indulge me at this point i would like to step back a minute and explain to you why it is that i am here before you i am here to seek the enforcement of any now burger employees section seven rights their rights under the national labor relations act section seven guarantees employees right to self organization and to engage in concerted activity for their mutual aid and protection these rights depend on communication they depend on  freedom to communicate in the workplace with each other about self organization about their terms and conditions of employment about unions and about what they might want to do differently in the workplace if they have the power to achieve communication and the freedom of employees to communicate is the lifeblood of section seven for employees to be able to take the concepts of self organization and turning that concept into a reality they must be able to communicate with each other at the workplace now employees must not only be able to exchange information with each other they must also be able to inspire each other inspiring each other to do something differently to change the status quo in the workplace what what authority says this inspiration is part of this section seven right your honor i would point you to this is very case here we had three in and out burger employees at a restaurant in austin no i'm not asking for i'm sorry about preexisting authority that says inspiration is a stated section seven value that you just told us  i'm not asking how does that apply here i'm asking you just define section seven rights very broadly and this kind of a theory a low inspirational thing where where does it say that that's part of the right your honor i would in the first instance refer the courts to the d c circuit is decision in health bridge that is cited in the briefs and i say it's an inspirational bright i don't believe they used those exact words to their hourly rate i mean that's sort of right at the center what an employee is interested in it's really getting paid eight hours and fifty cents an hour i'm for fifty and i might be willing to settle for twelve but let's go for fifty you know that's where i'm advocating for higher pay is that what this is about it is what this is about which is different then inspiration and motivation and all this other w motivational but it's not it's but it's advocacy lite i understand i haven't substantiated that point yet but i promise time soon or do you want to just move on to something else i would like to move on  explain exactly what they concerted activity in this case was i want to suggest that that that that you could possibly prevail in your argument without any mention of inspiration but when you start talking about inspiration and all that my  recommendation is you either need to cite some case that already you probably need to move on to new york or take it all right now here we had three employees at an in out burger restaurant in austin texas they wanted to exercise their section seven rights by wearing a pin supporting a movement to increase the minimum wage to fifteen dollars an hour now it wasn't all these employees doing it all at once we started with employee her name was amanda healey and she came into work on one day in april wearing a button that is the button that you have in the record before you during that day when she wore it it was a six hour shift to people talk to her about the book neither of them are customers neither of them were supervisors they were two of her colleagues is there some  ice i'm just concerned your time is running out and is there something about this i don't think there's a factual dispute about that they were told not to wear the buttons and make it really quick one of the employees who spoke to her was david nevels and he on the very next day asked his manager if he could wear a button too and then a third employee on another day wanted to wear them but at that point the employer cracked down employee told david nevels that button was not part of the new uniform the employer instructed crowder to take the button off and he testified that after hearing about the crowder incident she didn't wear the button going to wear the buttons the bosses don't want to let them we've got that all right so i'll get more into the weeds here to start i want to speak briefly about the standard review your honor  from those facts are affirmed if plausible and when the board applies a lot of facts and balances managerial rights against section seven rights the balance the board however more closely on point our two decisions i cite in the statute standard of review section of the brief which are this court's cases the name escapes me but they the proposition that this weighing is firm unless arbitrary or unreasonable ok now with that i'd like to turn to the the burden of proof because the employer's made the contention here that the board applied some sort of new evidentiary standard and that's just incorrect as far back as nine hundred seventy and perhaps longer the board has explicitly stated that vague general evidence is insufficient to establish that special circumstances enough to outweigh employees section seven it's now although the company is wrong about the burden of proof they are right about one thing in their brief which is that the board isn't any more expert in the fast food industry than it is in hospital patient care and that's precisely why the employer is in the best position to proffer evidence of the impact buttons and pins would have on its business so say not just me so says the supreme court in beth israel hospital now lest there are any questions about the standard of review or the burden of proof i'd like to move right on to the public image things i do want to ask a question about this decision which is one of the most unique decisions  i've ever read and perhaps you would agree with that that it's got all these these footnotes where they're just claiming their agreement with the administration because the administrative law judge when considerably farther than any other one i've ever read in expressing a lot of opinions about different things you agree with that right it's a very interesting opinion believe footnote to the board's order makes clear that they took some issue with the tone that the administrative judge not just his tone but the random assertions here in there in kind of political points being made that's right that's correct that's right on however there was no disavowal of the critical analysis and the points of law and no disavowal of the judge's analysis distinguishing w hotel from the instant case i want to make that clear because the company argues to the con ok so did acting chair the acting chairman disagree on any part of this this decision he disagreed on a small part of it he was the board was unanimous in rejecting the special circumstances defense as applied to either the blanket ban or the button the only thing that  former chairman mr martin dissented on is that he didn't think that this extra violation about telling employees levels that a button was part of the uniform that that added anything he thought it was cumulative and wouldn't add to the remedy is that was really the extent now moving on to the public image defense the test is not disputed here what is disputed is whether the company has satisfy the requirements of the defense and to explain why it hasn't i want to break up the public image defense into sensually two buckets of proof but a company has to fill with evidence the first is the image bucket the company has to show that it has an image that it cultivated through appearance rules for its employees there's no dispute here that in and out burger has an image that the cultivated through appearance rules for their employees so there's no bucket one problem as such with the company failed to  do is to show how protected buttons including the five fifteen button would i'm reasonably interfere with that image that is a fundamental problem in the case and there are really two reasons why the the judge and the board reasonably rejected the special circumstance defense one simply a lack of evidence the company didn't really put up and explain why there would be an interference and it interference so significant that it would outweight employee statutory rights the second problem they argue anything about the fist being threatening not threatening your honor t argue to the board that he fist was contrary to the company's friendly image do you need an expert for that or can you just say this people's faces is generally not considered friendly you said they didn't put on actual evidence i assume you mean like experts to say this did they need an expert or is that a commonsense conclusion you can draw but i treat your questions as it's two parts to need an expert on what a fis means probably not do you need an expert what in face means definitely not but here we don't have a fist in the face we have a raised fist with the numbers fifteen and a dollar sign now the employer didn't put anything in the record that would make it's reasonable to infer that employees would see this and say oh that's calling for fisticuffs the fight for fifteen is no more calling for violence then fight for a better education would mean i'm going to go beat up a school principal it's just an unreasonable in fact it's a negative thing it's a negative thing to have a fist fight that's a negative i'm whether you think it's a good cause or not i'm not a expressing a thing on that it's a negative thing to have a fist fist is not a happy face it's a it's a provocative thing don't you in any kind of way even if it's in solidarity with a good now as the company wanted to say no no no this fist has a different meaning and it's associated with something really bad they could put on that at times but they do not evidence if it's just because solidarity with the union is a good enough reason to have  fist i mean that's a positive image enough is that what your point is yes you're ok what about are we allowed to consider the impact of the customers because some of the some of the recession we are in  of them say we're not the company in this reply brief argues that the fifteen message is problematic because it implies false and misleading messages about the company's compensation philosophy that is absolutely not before the court i just the general point that i don't want to go eat a hamburger at some places having a political discussion that is going to dry out i'm not saying that this is true for me i'm just giving a hypothetical you don't want to just use one each for hamburger and not be confronted with some kind of political issue in this because it's so stressful these days with all these political issues can we consider the custard and would they have had to reply brief but maybe i'm so that that's not a proper argument for them preserve that may answer the costly they made that argument the first time their reply brief so of course it's waived but more importantly there's no jurisdiction to consider it because pursuant to section twenty of the national labor relations act the court cannot address any objection that was not purged to the agency below and that and that objection was not heard before the agency did you have some wra work in the instant case the board reasonably found that in and out burger employees could exercise that right  just a few points on the fight for the increase in the minimum wage and judge king's reference to maybe settling for twelve well there is evidence in the record that at this store we were already paying our associates twelve dollars an hour and there is evidence in the re and out has consistently paid more than minimum wage distinguishing it from our competition this is known to the public and that leads the fight for fifteen button in this context to be we argue ambiguous second  with regard to acting chairman misnomers dissent he does take issue in that super long footnote about this whole question of the wonderland that the ws san diego tell had to create and he says that you don't really have to have something like that specifically crazy different out of this world that that you don't have to have that to prove special circumstances that going into buying a hamburger were part of your business plan is to create this new image can beat the special circumstance sandwiches our menu is always the same our associates wear white uniforms all managers are home grown we pay more than the minimum wage the image never changes at the logo never changes and there are just a number of distinguishers for in and out from other fast food service industry restaurants the other point i'd like to make is again coming back to the size of the b the special circumstances cases a lot of times that's in evidence and that's a consideration but in this case because we have both a food safety and a public image concern i would submit that there is no such thing as the goldilocks size button here if you make it smaller than it's going to be less likely to be noticed if it falls off the uniform and falls in the food that will diminish the impact on your public image right because it's smaller it's more innocuous but it increases the risk out of  whether or not this button was any more or less safe than any of these other did he did i mean in terms of some expert the weight needs to be this or the class needs to be one that you can screw on or safety but none of that but if there's if the board ruling is allowed to stand here the door is completely open the scope of this order basically would allow associates to add anything to their uniform stickers insignias any type of attachment put it here here here here here anywhere they want to and we have control over our human form for an important reason so that we know what the associates are wearing we know what they're bringing into the food preparation areas and if you open the door for any sort of insignia or any sort of button we don't have that control over the safety of that's not accurate is it because you can still argue that particular placement is more likely to fall in the the burger or the soup whatever you know the saying that they can't be a blanket ban is not the same thing as saying you can't have reasonable regulations that you will articulate later if you lose your blanket ban this is a fast paced environment we have associates moving from one station to the other and we believe that the board those difference to our judgment responsible for we didn't construct it we're not responsible for it and you're saying let that into the food preparation area yes that's what we're saying ok i have one more question did you argue before the board that customers would be turned off and not come to the restaurant because of the buttons of the political nature of the buttons that there is a long line of cases that say actual harm to the customer need not be shown so is the  to be turned off and not want to eat at this restaurant because people are wearing political button i think opposing counsel said it correctly we argued that the clenched fist image was contrary to the friendly atmosphere that we're trying to portray