Decision 2880H – Regents of the University of California
SF-CE-1198-H
Decision Date: October 24, 2023
Decision Type: PERB Decision
Description: Charging Party excepted to a proposed decision finding that Respondent’s policy prohibiting union insignia on employer-provided vehicles did not interfere with employee protected rights, and that even had Charging Party proven a prima facie case, the University established its affirmative defense by showing special circumstances required the prohibition.
Disposition: The Board reversed, finding that Charging Party did prove a prima facie case and that Respondent failed to demonstrate that special circumstances justified its prohibition of magnets bearing union insignia on employer-provided vehicles, thus concluding that Respondent violated the HEERA.
Perc Vol: 48
Perc Index: 71
Decision Headnotes
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. 5.)
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. 5.)
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. (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.)
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.) A history of union insignia display in the workplace without resulting incidents is relevant to determine whether special circumstances exist (p. 10).
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. (pp. 8-9.)
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.)
409.01000 – 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.)
409.01000 – Business Necessity
A history of union insignia display in the workplace without resulting incidents is relevant to determine whether special circumstances exist (p. 10). An employer need not wait until an actual incident 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. (pp. 10-11.)
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. 6.)
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. 6.)
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. 6.)