Employment Law Daily In SCOTUS briefs, In-N-Out, solicitor general spar over application of Janus to ‘Fight for $15’ buttons
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Monday, February 4, 2019

In SCOTUS briefs, In-N-Out, solicitor general spar over application of Janus to ‘Fight for $15’ buttons

By Pamela Wolf, J.D.

The petition for Supreme Court certiorari review and the solicitor general’s brief in opposition are at odds over whether “extraordinary circumstances” exist that would permit application of the Court’s Janus ruling to the facts of this case.

Department of Justice Solicitor General Noel Francisco is urging the Justices to refrain from taking up a Fifth Circuit decision holding that In-N-Out Burger violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it barred employees at an Austin, Texas, restaurant from wearing buttons supporting the “Fight for $15″ movement. The fast food restaurant employer has asked the High Court to take up the case in light of its recent ruling in Janus v. AFSCME and another First Amendment case.

Below, the appeals court enforced a National Labor Relations Board (NLRB) order finding that In-N-Out violated Section 8(a)(1) when it barred employees at the restaurant from wearing buttons supporting the “Fight for $15″ movement. The company could not overcome the presumption that blanket bans on such insignia are unlawful under the NLRA, failing to convince the court of appeals that public image considerations or food safety concerns constituted “special circumstances” justifying the prohibition.

Did the Fifth Circuit get it wrong? In its petition for certiorari, In-N-Out argued, among other things, that the Fifth Circuit erred in failing to reconcile its holding with Janus, which it argued “held that the government cannot compel private persons to endorse or subsidize messages with which they do not agree.”

Janus doesn’t work here. The solicitor general, however, writing on behalf of the Board, described Janus as holding that “the First Amendment prohibits public employers from requiring their employees to pay ‘agency fees’ to public-sector unions.”

Issue was not raised. And even if Janus were relevant to this case, the High Court is without jurisdiction to consider In-N-Out’s argument because, as the petitioner has acknowledged, it never raised a First Amendment claim to the Board. That means that under Section 10(e) of the NLRA, the Court cannot consider Janus absent “extraordinary circumstances,” according to the solicitor general.

No extraordinary circumstances. Moreover, while the petitioner has suggested that “extraordinary circumstances” excuse its forfeiture because the Board “acted in excess of its authority” by ordering petitioner to cease the unfair labor practice, that assertion lacks merit, the solicitor general said. “Unlike the cases petitioner cites … in which the Board lacked authority to act because it lacked a quorum or jurisdiction over an employer, petitioner here simply disagrees with the Board’s decision.”

This objection does not run to the Board’s authority or its jurisdiction, and does not amount to an “extraordinary circumstance” excusing forfeiture under the jurisdictional requirement of 29 U.S.C. 160(e).

Not an intervening change in law. Further, In-N-Out’s contention that Janus was “an intervening ‘change in law’ that creates an extraordinary circumstance” also misses the mark, according to the Solicitor General. “The First Amendment compelled-speech doctrine did not originate with Janus; indeed, the passage from Janus that petitioner quotes to support its First Amendment argument was itself citing cases from decades earlier.”

The High Court also explained in Janus “that parties had ‘been on notice for years’ about the issue presented there,” and thus In-N-Out could have raised the argument in a timely manner, but having failed to do so, is barred from asserting it now, according to the governments brief.

Not so fast. In reply, In-N-Out argued that, “in the extraordinary circumstance where governing law has changed following a Board decision while an appeal is pending, Section 10(e) poses no bar to judicial consideration of a party’s objection based upon the change in the law.” Such an objection could not have been made sooner—it would have been frivolous to do so.

The employer also disagreed with the idea that Janus did not change First Amendment law: “In Janus, this Court unequivocally held that Abood v. Detroit Bd. of Ed., … a decision of 41 years standing, was ‘wrongly decided and is now overruled.’ …The Court undeniably gave greater force to past holdings, which Abood had minimized, that protected individuals from being compelled to endorse ideas they find objectionable.”

Moreover, according to the petitioner, the Court’s parallel holding in National Institute of Family and Life Advocates v. Becerra (2018) “gave new force to the contention that businesses like the Petitioner are protected by the First Amendment from government regulations chilling protected speech.”

Time to take another look? Before the Court’s rulings in Janus and Becerra, In-N-Out had “no credible likelihood of success in arguing that the NLRB rule at issue here violated the First Amendment,” the reply brief suggests. “But now the Court’s recent rulings have given the First Amendment its intended force, requiring a reevaluation of the Board’s unconstitutional employee button policy.”

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