PERB: Restrictions On Union Insignia Too Broad

Fresno County Superior Court (2017) PERB Decision No. 2517-C (Issued on 2/27/17) (Judicial Appeal Pending)

The Service Employees International Union (SEIU) challenged several personnel rules regulating employee dress and appearance adopted by the Fresno County Superior Court (Court). Specifically, the Court’s personnel rules: 1) prohibited employees from wearing union insignia anywhere in the courthouse; 2) restricted distribution of literature during working hours in work areas; and 3) banned the display of union writings/images in all work areas visible to the public.

Restrictions on Clothing and Displays with Union Messages

The Board affirmed the general rule that wearing union clothing, buttons or pins in the workplace is protected absent special circumstances. Here, the Court argued that a special circumstance exists due to the nature of its operations, similar to federal cases giving special protection to patient-care areas in hospitals. While the Board acknowledged that such a special circumstance may exist, the Board set forth the test of whether an objectively reasonable person would assume a Judge assigned to a case was biased or susceptible to pressure from Court employees who support the union. Even though the Board did not require a showing of actual harm, the Board nevertheless held that the Court had failed to demonstrate such a potential bias problem. Accordingly, the Board held that the Court did not demonstrate a special circumstance allowing the disputed rule.

Restrictions on Distribution of Literature

The Board affirmed the ALJ’s holding that a prohibition on distributing literature during work time is permitted since “working time is for work.” In upholding this portion of the ALJ’s decision, the Board noted that work time does not include breaks or meal periods. The Board reached the opposition conclusion as to the prohibition on distributing literature in work areas. Work areas, according to the Board, are also used for breaks and therefore the Court’s rule was impermissibly vague. The Board iterated that restrictions such as this one must be narrowly drawn and any ambiguity will be construed against the drafter of the rule.

Comments:

This case is on appeal. Also, in the interest of full disclosure I often represent the courts in PERB matters although I am not involved in this particular case.
The real dispute here appears to be the Court’s desire to prohibit union insignia in the courtroom. The Court strenuously asserted that to maintain the appearance of impartiality, such displays cannot be allowed. In evaluating the Court’s argument, PERB appeared to focus almost exclusively on the notion of judicial impartiality. Specifically, PERB did not accept the notion that an individual may believe a judge is biased merely because courtroom personnel are displaying union insignia. In other words, the fact that the court clerk is wearing a SEIU button wouldn’t make an objective person feel that the judge was biased.
My problem with PERB’s rationale is that the exact same argument could be used with respect to patient-care areas in hospitals. Indeed, one must wonder whether PERB would even recognize the NLRB’s special treatment of patient-care areas. Under PERB’s logic, why would a patient care that a nurse is wearing a union button? If the button merely says, “I support SEIU” perhaps PERB is right. But it’s not always that simple. In the hospital context, there have been cases where the button states that budget cuts affect patient care, or that there are not enough nurses to care for patients. These buttons had the potential to scare and/or harm patients which gave rise to the special rule recognized by the NLRB. Imagine the same thing in a courtroom: a button that says, “Staffing cuts prevent fair trials.” Surely PERB would have to agree that such a button is inappropriate in a courtroom. I suppose PERB’s response is that such a scenario can be handled on a case-by-case basis and that a blanket prohibition is overbroad. But requiring employers and unions to deal with such situations on a case-by-case basis would lead to exactly the type of “guessing” by employees that PERB criticizes throughout this decision.
In my humble opinion, a prohibition on employees wearing union insignia in the courtroom has minimal effect on employee rights and serves a legitimate interest of the courts. Obviously, such a prohibition must be content-neutral so that other types of insignia should also be banned. But if the ban is content-neutral and evenly enforced I don’t see a problem with it. To me, this is analogous to a patient-care area in a hospital.