In-N-Out Burger, Incorporated v. National Labor Relations Board

The National Labor Relations Board (“NLRB” or “the Board”) applied its “special circumstances” doctrine in this case to compel Petitioner In-N-Out Burgers to allow its associates to add unwanted messages to their work uniforms while interacting with the public, contrary to the message and public image Petitioner wants to communicate. In conflict with other circuits, the Fifth Circuit Court of Appeals enforced the Board’s order, thereby compelling speech and departing from the Board’s own precedent. The questions presented are:

1. Whether the Board’s order compelling speech of a private employer violates the First Amendment, in light of this Court’s recent holdings in Janus v. AFSCME, Janus v. AFSCME, 138 S. Ct. 2448 (2018), and National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018).

2. Whether the Board and Court of Appeals erred in their application of the Board’s special circumstances test in this case, in conflict with the Board’s own precedent and decisions of other Circuits, and/or whether the test is so muddled and internally inconsistent as to be unenforceable in light of its chilling effect on employers’ First Amendment rights.