Decision 1026S – State of California (Department of Parks & Recreation) (International Union of Operating Engineers, Craft-Maintenance Division, Units 12 & 13)

SF-CE-102-S

Decision Date: November 17, 1993

Decision Type: PERB Decision

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Perc Vol: 18
Perc Index: 25011

Decision Headnotes

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
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.

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
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.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
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.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
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.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

1102.00000 – CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION
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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
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