Decision 2702M – City of Sacramento

SA-CE-1009-M

Decision Date: March 25, 2020

Decision Type: PERB Decision

Description:  Charging Party excepted to a proposed decision finding that Respondent’s concerns for employee safety justified a policy prohibiting union insignia on employees’ hardhats.

Disposition:  The Board reversed, finding that Respondent failed to demonstrate that special circumstances justified its prohibition of union insignia on employee hardhats, and thus concluded Respondent violated the MMBA.

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Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

Although federal judicial and administrative precedent is not binding on PERB, it often provides persuasive guidance in construing California’s public sector labor relations statutes. (p. 9, fn. 13.)

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.03000 – NLRA/LMRDA Precedent

Although federal judicial and administrative precedent is not binding on PERB, it often provides persuasive guidance in construing California’s public sector labor relations statutes. (p. 9, fn. 13.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.07000 – 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.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.07000 – 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.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.07000 – 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.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.07000 – 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.)

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.07000 – 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.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

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.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

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.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

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.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

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.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

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.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Absent good cause, the Board will dismiss as without any merit any initial exceptions filed by a prevailing party unless the Board’s ruling on the exceptions would change the outcome of the proposed decision. (p. 2, fn. 3.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.20000 – Other

Absent good cause, the Board will dismiss as without any merit any initial exceptions filed by a prevailing party unless the Board’s ruling on the exceptions would change the outcome of the proposed decision. (p. 2, fn. 3.)

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

Although federal judicial and administrative precedent is not binding on PERB, it often provides persuasive guidance in construing California’s public sector labor relations statutes. (p. 9, fn. 13.)