Decision 1026S – State of California (Department of Parks and Recreation) (International Union of Operating Engineers, Craft-Maintenance Division, Units 12 and 13)
SF-CE-102-S
Decision Date: November 17, 1993
Decision Type: PERB Decision
Perc Vol: 18
Perc Index: 25011
Decision Headnotes
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
As no MOU was in effect for Unit 12 members, no duty to arbitrate a retaliation claim; p. 3; p. 10, proposed dec. Articles of the MOU covered the allegations raised by unfair practice complaint and therefore the 3519(a) allegation concerning Unit 13 must be dismissed and deferred to binding arbitration; p. 11, proposed dec. Where the contract prohibits retaliation and interference against employees, but does not also contain language barring the State from denying employee organizations their rights under the Dills Act, the section 3519(b) violation should not be deferred; p. 3; p. 11, proposed dec.
102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes
Wearing of buttons not protected by first amendment.
401.01000 – In General; Prima Facie Case.
In cases of alleged interference, a violation will be found when the employer's acts interfere with the exercise of protected rights and the employer is unable to justify its actions by proving operational necessity; p. 4.
401.04000 – Access – Union Right
Unions have a protected right to communicate with its members at work sites which has been found by the Board to exist in its right of access; p. 5; Whether or not other means of communication are available does not deny a particular form of access; p. 6; Only when a particular type of communication is disruptive will the Board look to other means of communication.
401.07000 – Display of Union Insignia
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.
300.17000 – Other
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. Union had clear purposes in having employees wear buttons as it had just won a decertification election and was trying to build support among its new members; p. 20, proposed dec. Wearing of buttons not protected by first amendment.
1102.01000 – Pre-Arbitration
As no MOU was in effect for Unit 12 members, no duty to arbitrate a retaliation claim; p. 3; p. 10, proposed dec. Articles of the MOU covered the allegations raised by unfair practice complaint and therefore the 3519(a) allegation concerning Unit 13 must be dismissed and deferred to binding arbitration; p. 11, proposed dec. Where the contract prohibits retaliation and interference against employees, but does not also contain language barring the State from denying employee organizations their rights under the Dills Act, the section 3519(b) violation should not be deferred; p. 3; p. 11, proposed dec.
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
To establish a violation of section 3519(b), the Union has the burden to establish a denial of its rights separate and apart from the rights of individual employees; p. 5. Since the employer banned all union buttons, the burden of proving special circumstances is on the employer.
409.01000 – Business Necessity
Department did not meet its burden demonstrating an operational necessity for the ban on buttons which would justify the harm caused to employee and union rights by the prohibition of union buttons; p. 21, proposed dec. 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 uniformity, discipline or appearance of neutrality among para-military law enforcement employees: or damage the image to the public by the