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409.01000 – Business Necessity

* * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C, where the Board issued a modified decision after the Court of Appeal partially vacated a portion of the original decision. Specifically, the Court of Appeal: (1) found that the court-employer’s need to appear neutral to the public was a special circumstance sufficient to support a ban on wearing insignia in the courthouse; (2) set aside PERB’s decision regarding display of union images and writings; (3) upheld PERB’s unalleged violations doctrine; and (4) upheld PERB’s decision finding a violation in the court’s prohibition against distributing union literature in work areas visible to the public. * * *

Although “[p]rivate-sector cases have concluded that, depending upon the situation, the need to project a certain image may permit an employer to ban union regalia” in areas where employees will have contact with the public, the Board rejected the Court’s argument that its need to project an image of impartiality and neutrality is a special circumstance justifying its restrictions on union regalia in the courtrooms and the rooms where mediations are conducted because the Court put on insufficient evidence to support a finding of special circumstances and it cannot categorically ban all display of union logos or regalia. Additionally, the Court’s history of having no such policy or/and of its lax or non-existent enforcement of any unwritten and apparently unpublicized policy defeated any assertion of special circumstances requiring such a policy now. The Board adopted the ALJ’s findings and conclusions that the Court’s rules prohibiting employees from wearing union regalia anywhere in the courthouse and the display of union writings and images in all work areas visible to the public were overly broad and interfered with protected rights under the Trial Court Act. (pp. 24-26.)