Decision 1727E – East Whittier School District

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.)

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.)

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.)