Demonstrators outside the U.S. Supreme Court during arguments in the union fees case “Janus v. AFSCME ” on Feb. 26, 2018. Credit: Diego M. Radzinschi/ NLJ

The U.S. Justice Department is urging the Supreme Court to turn down a petition that seeks to broaden a ruling last term against labor unions to reach other workplace disputes, including rules about what buttons and pins employees are allowed to wear.

The Justice Department asked the court to reject restaurant chain In-N-Out Burger's argument that the Supreme Court's ruling in June striking down mandatory “fair share” fees for public-sector unions should apply to a dispute over a company uniform policy for employees.

The U.S. Court of Appeals for the Fifth Circuit struck down a rule that prohibited employees at the California-based burger chain from wearing any insignia on their uniforms, including “Fight for 15” buttons advocating for a minimum-wage boost. Lawyers for In-N-Out Burger, represented by Littler Mendelson, contend the Fifth Circuit decision, tied to a workplace dispute at a burger joint in Austin, Texas, unlawfully compels the company to endorse ideas and speech it finds objectionable.

The company's attorneys pointed to the Supreme Court's divided ruling last term in Janus v. AFSME, which said public-sector unions can't force the collection of so-called fair share fees from nonmembers. “The NLRB is compelling the employer to endorse and/or subsidize a pro union message by allowing 'Fight for 15' buttons to appear on the employer's official uniform,” Littler Mendelson shareholder Bruce Sarchet in Sacramento, counsel of record, wrote in a petition at the Supreme Court. Sarchet did not respond to a request for comment Monday.

U.S. Solicitor General Noel Francisco, opposing the Littler Mendelson petition, said the justices should let lower courts further examine the Janus decision.

“Indeed, lower courts have had just over six months to consider the scope of Janus, and few decisions have yet applied it outside the agency-fee context in which it arose. Further percolation on this issue is plainly warranted,” Francisco wrote.

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The case at the high court stems from 2015, when employees at an In-N-Out Burger in Austin wore “Fight for 15” pins on their uniforms. The company argued that its employees are subject to uniform rules that prevent any type of pin or sticker.

The Fifth Circuit noted that the restaurant chain requires its employees to wear company-issued buttons twice a year, one for Christmas holiday and another that solicits donations to the In-N-Out foundation focusing on preventing child abuse and neglect. “As the board observed, the Christmas and In-N-Out Foundation buttons are appreciably larger and 'significantly more conspicuous' than the 'Fight for $15' buttons,” the appeals court said.

The Justice Department said the National Labor Relations Board “and the court of appeals correctly applied settled law to the facts of this case.” The department and NLRB, quoting a 1945 Supreme Court ruling, said the “right of employees to wear union insignia” or apparel related to issues such as wages or working conditions “has long been recognized as a reasonable and legitimate form of union activity.”

Littler Mendelson's Sarchet said in his petition that “whatever the merits of the board's compelling employers to allow associates to convey such a pro union message prior to Janus, that policy must be revisited now to avoid violation of employer first amendment rights.”

State and federal courts are still exploring the reach of the Supreme Court's decision in Janus.

The Justice Department, then under the leadership of Attorney General Jeff Sessions, had urged the justices to overturn decades-old precedent to rule that public-sector unions could not force nonmembers to pay “fair share fees.” The divided Supreme Court, led by Justice Samuel Alito Jr., concluded those fees violated the First Amendment speech rights of nonunion members.

The In-N-Out Burger dispute at the Supreme Court has not been set for any conference, and any decision on whether the case will be taken up could be months away.

 

Read more:

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Overturning Precedent, Justices Restrict Labor Union Power to Collect Fees

5 Key Moments From Supreme Court's Union-Fee Arguments