No Union Buttons for Courthouse Employees
January 10, 2019 by Kena Cador
A California Court of Appeal ruled last month that the judiciary’s desire to appear neutral outweighs an employee’s interest in wearing union buttons and regalia. Superior Court of Fresno County v. Public Employment Relations Board. (12/14/18)
Fresno County Superior Court rules prohibit employees from (1) wearing clothing or adornments with writings or images, including pins, lanyards and other accessories; (2) soliciting during working hours for any purpose without prior Court approval; (3) distributing literature (a) during working time and (b) during nonworking time in working areas; and (4) displaying writings or images not published by Court in work areas visible to the public.
In March 2010 the Union filed an unfair practice charge with PERB alleging the rules unlawfully interfere with employee activities. PERB upheld the charge. The question on appeal was whether public displays of support for various causes, including union views, create enough concern to justify limiting court employees’ expression of those views. The Court of Appeal answered yes.
In reaching its decision, the Court of Appeal observed that under state and federal law, employees have the right to wear union buttons and other regalia in the workplace, and that this general rule is subject to an exception where “special circumstances” justify a prohibition of union buttons and regalia. The Court of Appeal concluded that “special circumstances” exist in the trial court setting, noting “the need to maintain a neutral appearance on behalf of the judicial system is a paramount concern” justifying the restrictions on clothing and adornments worn by a trial court’s employees.
It is important to also note that the burden for proving special circumstances is on the employer. In fact, another PERB case decided only a week later upheld the right of nurses to wear union buttons in patient areas. California Nurses Association v. Regents of the University of California (12/21/2018). These cases illustrate the continued tension between the right of employees to voice their perspectives, and the need to avoid interference with employers’ ability to provide important public services.
The opinions can be downloaded below:
http://www.courts.ca.gov/opinions/documents/F075363.PDF (Fresno County)
https://www.perb.ca.gov/decisionbank/pdfs/2616-H.pdf (California Nurses)
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