401.07000 - Display of Union Insignia - California Public Employment Relations Board

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All notes for Subtopic 401.07000 – Display of Union Insignia

Decision	Description	PERC Vol.	PERC Index	Date
3017E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia Irrespective of enforcement, a rule that bans a category of conduct that could include protected activity as well as unprotected activity is unlawful because of this tendency to chill protected activity. A school district’s ban on the display of “flags,” broadly defined, encompassed union insignia and was therefore presumptively unlawful. The district failed to make a concrete, fact-based evidentiary showing justifying the policy’s restriction on union insignia. (pp. 20-24.) more or view all topics or full text.
3017E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia School district’s ban on the display of “flags,” broadly defined, encompassed union insignia. (p. 22.) more or view all topics or full text.
3017E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia The mere possibility of disruption is not sufficient to establish a special circumstance justifying a prohibition on displaying union insignia in a classroom. Instead, the employer must make a concrete, fact-based showing of special circumstances justifying a narrowly tailored restriction on any display of union insignia. (pp. 19-20.) more or view all topics or full text.
3017E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia Employees’ presumptive right to wear union buttons attaches in instructional settings. (p. 19.) more or view all topics or full text.
3017E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia In contrast to solicitation and distribution of literature, display of union insignia does not inherently involve an interruption from work. Therefore, employees’ presumptive right to display union insignia is not limited to non-working time or to non-work areas. (p. 19.) more or view all topics or full text.
3017E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia California’s public sector employees, like private sector employees, have a right to display union insignia in the workplace, absent an employer’s proof of “special circumstances” justifying a prohibition. (p. 18.) more or view all topics or full text.
2926S	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia Additional standards apply to allegations that an employer interfered with the right to display union insignia or other protected messages in the workplace. First, an employer rule is unlawful if, on either a facial or as-applied basis, the employer singles out protected conduct or speech, as compared to non-protected activities or speech. (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 13.) Second, a facially neutral, consistently applied rule may still be unlawful if the charging party shows that the employer adopted it in retaliation for protected activity. (Ibid.) Third, even as to a rule that is non-discriminatory and non-retaliatory, PERB recognizes that displaying union insignia or other protected messages in the workplace is generally “far less disruptive” than solicitation and distribution, and for that reason there is a rebuttable presumption against restricting such display. (Regents of the University of California, supra, PERB Decision No. 2880-H, pp. 8-9; City of Sacramento (2020) PERB Decision No. 2702-M, p. 9.) An employer may rebut this presumption only if it can establish “special circumstances” that justify the restriction. (City of Sacramento, supra, p. 9.) PERB considers such questions on a case-by-case basis, requiring the employer to make a “concrete, fact-based evidentiary showing” of a special circumstance. (Id. at p. 10.) Relevant factors include whether an insignia or message is likely to negatively affect operations, such as by posing a safety risk, disrupting employee discipline, distracting from work demanding great concentration, or damaging employer property. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 10.) Also important is the specific context in which the employer enacted or enforced the prohibition, the locations involved, industry practice, and the parties’ past practice. (Ibid.) Thus, a history of insignia or messages in the workplace without resulting incidents can undercut an employer’s argument. (Ibid.) General, speculative, isolated, or conclusory evidence of potential disruption to an employer’s operations does not amount to special circumstances. (Ibid.) Moreover, an employer may not rely on a concern to establish special circumstances if the record demonstrates that the employer has asserted it as a pretext for limiting protected activity. (Id. at pp. 10-11.) (pp. 20-22.) more or view all topics or full text.
2880H	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia PERB considers several factors in determining whether special circumstances exist that would justify a restriction on the right to display union insignia: whether the insignia could jeopardize employee safety, disrupt employee discipline (e.g., exacerbate employee dissention or cause distraction from work demanding great concentration), or negatively affect the employer (e.g., damage machinery, products, or a certain image necessarily projected for the public). Also important is the specific context in which the prohibition was enacted or enforced, the locations involved, and the parties’ past practice. (p. 10.) A history of union insignia display in the workplace without resulting incidents is relevant to determine whether special circumstances exist (p. 10). more or view all topics or full text.
2880H	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia The right to wear union insignia in the workplace is not unlimited and may be subject to reasonable regulation. However, any restriction on the right to display union insignia and messages in the workplace is presumptively invalid; it is permitted only if special circumstances exist justifying the prohibition. (pp. 8-9.) The employer has the burden of establishing that its policy or rule abrogating employees’ right to display union insignia is justified by special circumstances. This analysis is done through a case-by-case approach that considers the particulars of the employer’s operations; the employer must make a concrete, fact-based evidentiary showing that special circumstances exist. (pp. 7-8.) more or view all topics or full text.
1727E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia As it stated in Turlock I, the Board does not agree that the wearing of union buttons is “political” activity within the meaning of Education Code section 7055. When examined in light of adjacent statutory provisions and the purposes of EERA, the scope of the definition of “political activities” in Section 7055 cannot reasonably be construed so broadly as to encompass the exercise of concerted activity through the wearing of a button communicating employees’ bargaining demands, expressing unity and support for the union, and building solidarity. While the term “political activities” is not specifically defined in the Education Code, sections 7050-7058, read in their entirety, clearly associate political activity with an election of a candidate or a ballot measure. (p. 14.) more or view all topics or full text.
1727E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia 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.) more or view all topics or full text.
1727E	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia It is well-settled under the statutes administered by PERB that employees have a protected right to wear union buttons at the workplace. (State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S (Parks): see also, State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S.) In Parks, a unanimous decision, Member Carlyle set forth the simple rule that, “the wearing of union buttons is a protected right, absent special circumstances.” (Parks at p. 4.) What constitutes a “special circumstance” depends on the setting, and “special circumstances” recognized in industrial settings may not be applicable in a classroom. Here, of the five special circumstances or considerations listed in Pay’N Save (employee dissension, safety, property damage, distraction, and public image), the District in this case argues only that distraction is an issue. The District has not shown that the classroom work at issue requires such a high degree of concentration, or that one more distraction could have dire consequences. Further, the District has not demonstrated that any of its students are particularly susceptible to distraction, which might justify banning buttons as to those students. Finally, the Board takes notice that the record establishes that the District permits other articles of clothing and activities which are as distracting, if not more, than the buttons at issue. Accordingly, the Board finds that the District has no established distraction as a special circumstance justifying its policy and regulation. In reaching this finding, the Board has not considered any evidence of actual disruption; rather, the test must be an objective one based on an examination of the buttons at issue. (pp. 8-13.) more or view all topics or full text.
2702M	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia A history of union insignia display in the workplace without resulting incidents is relevant to determine whether special circumstances exist (p. 11), and a history of allowing non-union related items on hardhats without incident also weighs against finding special circumstances (p. 14.) An employer need not wait until an actual injury occurs before banning union insignia for safety reasons; but to establish safety-based special circumstances to support such a ban, the employer must present concrete evidence that employee safety is foreseeably threatened by displaying the union insignia and that it has acted consistently with its stated concern. (p. 14.) more or view all topics or full text.
2702M	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia Contrary to an employer’s stated safety concerns—banning stickers is necessary to prevent damage to employee hardhats—it failed to produce any evidence that the ban was necessary to prevent hardhat damage. Lack of evidence that the employer conducted any regular inspection of the hardhats for damage undermined those concerns. It also allowed employees to affix other items to their hardhats with adhesive materials without any explanation regarding those materials’ effect on the hardhats. (pp. 12-14.) more or view all topics or full text.
2702M	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia PERB considers several factors in determining whether special circumstances exist that would justify a restriction on the right to display union insignia: whether the insignia could jeopardize employee safety, disrupt employee discipline (e.g., exacerbate employee dissention or cause distraction from work demanding great concentration), or negatively affect the employer (e.g., damage machinery, products, or a certain image necessarily projected for the public). Also important is the specific context in which the prohibition was enacted or enforced, the locations involved, and the parties’ past practice. (p. 10.) more or view all topics or full text.
2702M	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia The employer has the burden of establishing that its policy or rule abrogating employees’ right to display union insignia is justified by special circumstances. This analysis is done through a case-by-case approach that considers the particulars of the employer’s operations; the employer must make a concrete, fact-based evidentiary showing that special circumstances exist. (p. 10.) more or view all topics or full text.
2702M	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia The right to wear union insignia in the workplace is not unlimited and may be subject to reasonable regulation. However, any restriction on the right to display union insignia and messages in the workplace is presumptively invalid; it is permitted only if special circumstances exist justifying the prohibition. (p. 9.) more or view all topics or full text.
2616H	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia To show special circumstances, employer need not prove actual disruption, though evidence of disruption or lack thereof is a relevant factor. General, speculative, isolated, or conclusory evidence of potential disruption does not amount to special circumstances. more or view all topics or full text.
2616H	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia Employees have a right to wear union insignia and buttons at their workplace. Restrictions on the right are lawful only if the employer proves they are justified by special circumstances. more or view all topics or full text.
2393M	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia Absent special circumstances, firefighters have the statutorily protected right under the MMBA to wear public safety uniform apparel (t-shirts and caps) bearing the union logo while on duty; a “no union logo” blanket policy is unlawful because it interferes with firefighters in the exercise of their right to participate in the activities of an employee organization of their own choosing for the purpose of representation on all matters of employer-employee relations. more or view all topics or full text.
1026S	401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia * * * OVERRULED IN PART ON OTHER GROUNDS by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 11. * * * The protected right to wear union buttons is not unlimited and is subject to reasonable regulation. If special circumstances exist, then the employer may be within its rights to limit or prohibit the wearing of buttons by employees; p. 4, proposed dec. Special circumstances justifying a prohibition of union buttons or insignia exist where buttons could jeopardize employee's safety; damaged machinery or products; exacerbate employee dissension; cause distraction from work demanding great concentration; disrupt the uniformity, discipline or appearance of neutrality among para-military law enforcement employees: or damage the image to the public by the employees coming into contact with the public in the absence of a protected purpose; pp. 18-19, proposed dec. Wearing of buttons not protected by first amendment. Wearing of buttons not protected by first amendment. more or view all topics or full text.