EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS – Display of Union Insignia

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Where it is alleged that a button is distracting or disruptive, an objective examination of the button should take place. Buttons that contain profanity, incite violence, or which disparage specific individuals will always meet the special circumstances test. Otherwise, the trier of fact must examine the button in its given context to determine whether an objectively reasonable person would find it unduly distracting or disruptive. In determining whether a button is unduly distracting or disruptive, the trier of fact should consider both PERB precedent and private sector cases under the NLRA, as the ALJ did in analyzing Fabri-Tek. The trier of fact should also compare the buttons to other distractions prohibited or allowed by the employer. (p. 13.)