East Whittier School District (PERB 1727E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EAST WHITTIER EDUCATION ASSOCIATION,
Charging Party,
v.
EAST WHITTIER SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4264-E
PERB Decision No. 	1727
December 	2 1 , 	2004
Appearances: 	California Teachers Association by Rosalind D. Wolf, Attorney, for East
Whittier Education Association; Munger, Tolles & Olson by Alan V. Friedman and Carolyn
Hoecker Luedtke, Attorneys, for East Whittier School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the East Whittier School District (District) to the proposed
decision of an administrative law judge (ALJ). 	The ALJ found that the District violated the
Educational Employment Relations Act (EERA)1 by adopting a policy prohibiting the wearing
of certain union buttons in instructional settings.
The Board has reviewed the entire record in this matter, including the ALJ's proposed
decision, the District's exceptions and the response of the East Whittier Education Association
(Association). The Board declines to adopt the ALJ's proposed decision as it cites to Turlock
Joint Elementary School District (2002) PERB Decision No. 1490 (Turlock T). which has since
EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

been overturned by the Court of Appeal. However, as discussed in the decision below, the
Board agrees with the ALJ's ultimate conclusion that the District violated EERA.
PROCEDURAL HISTORY
In this case, the Association alleges that the District unlawfully interfered with
employee rights by adopting a policy limiting the wearing of union buttons. The Association
filed the unfair practice charge at bar on February 2, 2001. PERB's General Counsel's office
issued a complaint on May 18, 2001, to which the District filed an answer on June 7, 2001,
denying any violation of law.
PERB held an informal settlement conference on August 30, 2001. The case was
placed in abeyance for several months, until the Association requested that it be removed from
abeyance. PERB ultimately held a formal hearing on March 10 and March 11, 2003. With the
receipt of the final post-hearing brief on June 5, 2003, the case was submitted for decision.2
On June 16, 2003, the ALJ issued his proposed decision finding that the District violated
EERA.
After issuance of the proposed decision the District filed timely exceptions. 	The parties
then requested that the Board stay this matter pending the Court of Appeal's decision in the
challenge to Turlock I. The Court of Appeal eventually overturned Turlock I in a published
decision. 	Subsequently, the California Supreme Court declined to grant review, but ordered
that the Court of Appeal decision be de-published. As a result, the Board later issued Turlock
Joint Elementary School District (2004) PERB Decision No. 1490a (Turlock ID which vacated
Turlock I and summarily dismissed the complaint against the district without discussion.
With its post-hearing reply brief, the Association also filed a "request for judicial
notice" of a brief in another PERB case. 	The Board affirms the ALJ's denial of that request as
untimely.
22

As a final decision had been reached in Turlock II, this matter was removed from
abeyance. Briefs were then filed by the parties. The Board on its own motion requested oral
argument which was heard on August 25, 2004.
FINDINGS OF FACT
The District is a public school employer under EERA. The District has ten elementary
schools, grades K-5, and three middle schools, grades 6-8. The Association is an employee
organization under EERA and is the exclusive representative of an appropriate unit of the
District's certificated employees, including teachers, nurses and psychologists.
The basic facts of this case are fairly simple. The PERB complaint alleges, in part:
On or about January 8, 2001, Respondent [the District] adopted
Policy 4142 and Administrative Regulation 4142 prohibiting
employees from wearing in the presence of students any signs,
buttons or other objects favoring or opposing any matter that is
the subject of negotiations between the District and the exclusive
bargaining representative.
In its answer, the District admits this allegation.
Policy 4142 states:
COMMUNICATIONS/CONTACTS
It shall be the policy of the Board of Education that all matters
related to collective bargaining negotiations shall be kept out of
the classroom and other instructional areas in the presence of
students by both the exclusive bargaining representatives and the
District.
Administrative Regulation 4142 states:
COMMUNICATIONS/CONTACTS
District employees shall not initiate any discussion with students
in any District classroom or in other instructional areas that are
related to collective bargaining negotiations between the District
and the exclusive bargaining representatives. District employees
shall not wear or otherwise display in the classroom or in other
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instructional areas in the presence of students, any signs, buttons
or other objects that favor or oppose any matter that is the subject
of negotiations between the District and the exclusive bargaining
representatives.
The District Board of Education (District Board) approved the policy and regulation at a
regular meeting on January 8, 2001, over the objections of the Association.
The background of the policy and regulation is not in dispute. On August 31, 2000, the
collective bargaining agreement between the Association and the District expired before the
parties finished bargaining a successor agreement. 	One of the Association's bargaining goals
was a salary increase of at least 10 percent, as had been achieved in some other school districts.
In early October 2000, some Association members wore buttons to work that stated in part,
"It's Double Digit Time!"
These "Double Digit" buttons came to the attention of Larry Bobst (Bobst), the
District's assistant superintendent of personnel. 	Bobst then worked with the District's attorney
to draft the policy and regulation. Bobst testified there were two reasons for the policy and
regulation:
Well, the concern, again, as administrative team, Superintendent
and myself, really two issues and two reasons for the policy. 	One
was to protect instructional time. It's only natural that students
would ask questions and be distracted by the buttons. We were
trying to limit the distraction to students and keep them focused
on the curriculum that is required. The state has a curriculum.
The Board of Education has adopted a curriculum. 	The teachers
need to instruct in that. 	We wanted to minimize any interference
in the classroom with any distractions dealing with discussing
buttons, discussing union issues. We wanted to avoid that. That
was one reason.
Bobst continued:
The second reason was to protect the sensitivities of students.
The buttons could lead to confusion, distraction on the part of
students, not knowing whether or not their teacher was angry,
4

upset, concerned. Were they going to leave? Were they going to
go on strike? Put students in a position where they were
uncertain and could be confused and anxious about their teacher.
We wanted to avoid that. Basically, what we were trying to
accomplish was to keep negotiations out of the classroom and
instructional time.
(R.T., vol. I, p. 48.)
The policy and regulation went before the District Board for a first reading on November 13,
2000.
At the second reading, the District Board meeting of November 27, 2000, the
Association urged the District Board to table the policy and regulation. 	According to the
minutes, the Association president told the District Board that "the proposed policy infringes
on teachers' rights of free speech and their rights to show unity." The District Board agreed to
table the matter for additional discussion at the meeting on January 8, 2001.
According to the minutes of the January 8 District Board meeting, the Association
showed District Board members a new button being worn by teachers stating "Teachers are a
Priority." The District Board agreed that the policy and regulation would not prohibit the
wearing of this "Priority" button, because "the single intent of the policy is only to keep
collective bargaining issues out of the classroom." At a previous meeting, a District Board
member explained that she "has no problem . .. with teachers wearing buttons to show
solidarity and unity, but she believes it is inappropriate to wear buttons that advertise the
collective bargaining process." She and other District Board members expressed the view that
bargaining-related buttons could distract students and prompt inappropriate discussions. The
District Board unanimously approved the policy and regulation.
The Association also regarded the "Priority" button as bargaining-related: its
bargaining updates to its members featured such headlines as "Teachers Not a Priority . . . Yet"
5

and "Make Teachers a Priority!" The District nonetheless permitted them to be worn in the
classroom since it did not regard the buttons as bargaining-related. When Bobst was asked at
the hearing whether buttons stating "It's Pay-Back Time" would be bargaining-related, he said
he would need more information. Therefore, the District's distinction between buttons with
bargaining-related issues and other types of union buttons is not perfectly clear.
Under the policy and regulation, even bargaining-related buttons could still be worn
except "in the classroom or in other instructional areas in the presence of students." Such
buttons thus could be worn in hallways, offices and lounges, and before, after or between class
periods. The Association President, Kelly Sunada (Sunada), testified as to how many times a
day she would have to put on or take off a bargaining-related button in order to maximize her
exercise of rights under the policy and regulation:
Well, let's see, that would be two first period, between first and
second, take it off first period, put it on after, during the break
time, take it off after the break time, then at the end of second
period put it back on during the break time, and take it off. 	I'd
keep it on from nutrition, come back from nutrition to third
period, take it off, between third and fourth put it back on. 	I'm
lost. Fourth period take it off. Put it back on for lunch. 	Take it
off before fifth, put it back on between fifth and sixth. Take it off
sixth period, put it back on after school.
(R.T., vol. II, p. 60.)
She doubted that many Association members would be willing to do this.
In the District, there is usually just one certificated unit member at a time in a
classroom or other instructional area in the presence of students. 	There are exceptions,
however. 	Some kindergarten teachers, for example, share the same classroom at least part of
the day. Nurses, psychologists, teacher-trainers and special education teachers spend some
time in classrooms with other unit members. Teachers may also be in the same instructional
areas for assemblies, field trips and physical education periods.
6

Sunada advised teachers to respond to student questions about buttons by saying that "it
was a teacher thing," dismissing the subject, and getting back to the lesson. The District
doubted such a response would be effective, but there is some evidence it may have been.
Sunada testified that during a passing period between classes, when she was wearing the
"Double Digit" button, a middle school student commented that "all the teachers are wearing
those, huh?" Her response was "yeah, I guess so," and that ended the discussion. No other
student commented to her about the "Double Digit" button. A kindergarten teacher who also
wore the button testified that none of her students asked about or commented on the button.
Charles Royce, Principal of Granada Middle School in East Whittier City School
District, testified that during the transition to a nutrition period he entered an alternative
learning center classroom and saw a "Double Digit" button on the desk. A student approached
the desk and asked the teacher, "What's that?" The teacher responded, "Don't worry about it.
Go sit down." The teacher put the button away, and the conversation ended.
Jose Chavira, Assistant Principal for East Whittier Middle School, testified to a more
significant student response to the "Double Digit" button. 	He testified that during lunchtime,
nutrition and passing periods some nine or ten students asked him what the button meant and if
the teachers were going on strike. He answered that the teachers were not going on strike and
that negotiations were taking place, but the students seemed unsatisfied. Because students
were talking about the button as they came out of classrooms during passing periods, he said
he would "assume that possibly some of this discussion had taken place in the classroom."
Both the Association and the District had some other experience with bargaining-
related buttons. In the spring of 2000, Sunada had worn a button supporting negotiations to
reinstate a planning period. During a passing period, a student asked, "Why are the teachers
7

wearing those buttons and marching in front of the school?" 	She replied that it was "an
activity that teachers were doing," and the conversation ended.
Also in 2000, a button stating "A Fair Contract Now" had been worn by some of the
District's classified employees, including instructional aides. Josephine Sanders, Principal at
Ceres Elementary School in East Whittier City School District, testified that a student going to
the cafeteria had asked her why she was "being so mean to our teachers," referring to the
instructional aides wearing the buttons. 	She told him she would not discuss it and he should
get back in line, but he asked the question again. The principal testified:
He was very concerned. He had a kind of an anxiety look. His
little eyebrows were frowned.
(R.T.,vol. I, p. 167.)
She thought that "[o]bviously . . . some discussion had already taken place in the classroom
about negotiation." 	She spoke to Assistant Superintendent Bobst about the "Fair Contract"
button, but he decided "not to make an issue of it and jeopardize the [pending] contract" with
the classified employees union. The principal also took no action.
The District has various policies to minimize classroom interruptions and distractions,
but one could not describe them as "zero-tolerance" policies. According to Bobst, teachers
may wear T-shirts that say "[a]nything that is not vulgar, that is not profane, [and] that does
not deal with negotiations." With District approval, teachers may distribute flyers about
community group activities. There may be parties for holidays and birthdays, and there are
"fun days" when students are encouraged to wear special colors, "crazy hats" or even pajamas
to school.
8

DISCUSSION
Employees Have a Protected Right to Wear Union Buttons
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.)3 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.) The rule set forth in
Parks was not created out of whole cloth, but rather necessitated by the statutory language of
the statutes administered by PERB and by national public policy. (See EERA secs. 3543 and
3543.l(b); Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 [16 LRRM 620] (Republic
- -
Aviation); see also, Pay'N Save Corp. v. NLRB (9 th Cir. 1981) 641 F.2d 697 [106 LRRM
3040] (Pay'N Save); NLRB v. Harrah's Club (9 th Cir. 1964) 337 F.2d 177
[57 LRRM 2198].)
Indeed, the rule set forth in Parks is nothing more than a carbon copy of the Republic
Aviation standard utilized under the National Labor Relations Act (NLRA).4 In Republic
-
Aviation, the United States Supreme Court affirmed the right of employees under the NLRA to
wear union buttons in the workplace absent special circumstances. The rule set forth in
Republic Aviation has now been the law of the land for almost 60 years.
Indeed, neither party disputes this point of law.
4The NLRA is codified at 29 U.S.C. section 141, et seq. As EERA was modeled
after the NLRA, it is appropriate to look to NLRA precedent for guidance in interpreting
similar statutory language. (McPherson v. Public Employment Relations Bd. (1987)
189 Cal.App.3d 293, 311 [234 Cal.Rptr. 428].)
9

Special Circumstances
As mentioned above, the right to wear union buttons is not unlimited, but may be
prohibited where special circumstances exist. As the ALJ noted in the proposed decision, the
Board in Turlock I was not presented with the opportunity to define what constitutes "special
circumstances." Thus, this case represents the Board's first opportunity to discuss this issue.
In the private sector, the National Labor Relations Board (NLRB) and the courts have
recognized a variety of "special considerations". In Pay'N Save the court stated, in part:
The NLRB has found such special considerations, justifying a
prohibition on wearing union insignia, in cases where the insignia
could exacerbate employee dissension, jeopardize employee
safety, or damage machinery or products. The courts have
recognized additional 'special consideration' — distraction from
work demanding great concentration and a need 'to project a
certain type of image to the public' 	[Fns. omitted.]
Similarly, the ALJ noted that Turlock I cited safety, discipline and disruption as possible
special circumstances.
Obviously, what constitutes a "special circumstance" depends on the setting, and
"special circumstances" recognized in industrial settings may not be applicable in a classroom.
For example, the wearing of union buttons will seldom jeopardize safety or damage machinery
and/or products in school. Thus, what constitutes a "special circumstance" necessarily
involves a balancing of the various interests.
On one hand, PERB must weigh the statutory rights of employees under EERA.
Central to this consideration must be the maintenance of clear and open communication
between the employer and employees. 	It is important to assure that employees can freely voice
their perspectives so that the parties can construct an agreement everyone may support. It is
also important to assure that employers can ascertain the relative importance of their
10

employees' concerns at the workplace, so that they can properly develop and weigh bargaining
proposals during the process of negotiations. 	Such communication fosters the purpose of
"improving employer-employee relations within the public schools" by ensuring that
bargaining proposals are consistent with what the ratifying parties desire and will tolerate, and
that the resulting contract will facilitate a stable relationship during a period of time, thereby
promoting enhanced public service.
On the other hand, PERB must weigh the interests of the school district in educating its
students in classrooms free of undue distraction and disruption. 	In this regard, the Board is
cognizant of the cases, cited by the dissent, giving special treatment to classrooms in a variety
of situations. While the Board is open to the possibility that certain instructional settings may
constitute a per se special circumstance, the Board does not believe that "special
circumstances" are inherent to all instructional settings. Instead, the Board holds that as a
general rule the right to wear union buttons attaches in instructional settings as it does
elsewhere.
That said, the Board would not characterize, as did the ALJ, the District's burden to
demonstrate special circumstances as a heavy one. Rather, the District's burden is simply to
demonstrate that a special circumstance exists. 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.
Certainly the Association's bargaining-related buttons were potentially one more distraction
for students in the classroom. That distraction, however, must be compared with the kind of
distraction that has been recognized as a special circumstance or consideration; and in this
11

case, with other distractions permitted or fostered by the District to enhance the sense of
community among the students.
In Fabri-Tek. Inc. v. NLRB (8 th Cir. 1965) 352 F.2d 577 [60 LRRM 2376] (Fabri-Tek).
the "distraction" case cited in Pay'N Save, the employer manufactured magnetic memory
devices by hand. These devices were "extraordinarily complex" and had to "operate
perfectly." The court summarized the evidence as follows:
Without going into greater detail, it must be conceded the record
indicates very clearly that a high degree of concentration is
required on the part of the employees and that distractions of any
kind might very well lead to inefficiency, work slowdown and
costly errors.
The Board can also envision a classroom setting where a highly focused environment
must be maintained. However, in the present case 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.5 Accordingly, the Board finds that the District has not established distraction
as a special circumstance justifying its policy and regulation.
Indeed, as noted in the facts, the District permitted both bargaining and non-bargaining
related buttons in the classroom. Although not specifically at issue here, the Board notes that
historically, bargaining related activity, including buttons, have been accorded more protection
than non-bargaining related activity.
12

Objective Test
In reaching this finding, the Board has not considered any evidence of actual disruption.
The Board agrees with the District that actual disruption should not be required to demonstrate
the special circumstance of distraction or disruption. Rather, the test must be an objective one
based on an examination of the buttons at issue. 	Such a requirement is necessitated by the
Board's desire to avoid pulling students and other third parties into unfair practice proceedings.
Thus, the Board holds that in determining whether special circumstances exist, great care
should be taken by the ALJ and the parties to avoid eliciting testimony, whether direct or
through hearsay evidence, from students. Along these lines, the Board will similarly frown
upon the introduction of expert witnesses.
Instead, the Board holds that 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.
After conducting such an analysis, the Board concludes that the District has failed to
establish special circumstances to justify its policy and regulation with regard to bargaining-
13

related buttons. 	The Board therefore concludes that the prohibition of bargaining-related
buttons violates EERA section 3543.5(a) and (b).6
The Wearing of the Unions Buttons At Issue Here Is Not Political Activity
Next, the Board must address an argument advanced by the District after the Court of
Appeal issued its since de-published opinion overturning Turlock I. That argument is that
school districts may ban union buttons under Education Code 7055 as "political activity."
Education Code section 7055 provides that:
The governing body of each local agency may establish rules and
regulations on the following:
(a) 	Officers and employees engaging in political activity during
working hours.
(b) Political activities on the premises of the local agency.
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. 	Such a finding would fail to distinguish between the trustees' role as the employer
under EERA and their activity as candidates for elected office or as incumbents seeking
preservation of their offices or reelection.
6The issue of whether the First Amendment permits the District to ban certain buttons
based solely on content is not properly before the Board.
14

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. Relevant to this conclusion is the report that the evident
purposes of Education Code section 7054 is "to prevent partisan campaigning by a district."
(84 Ops.Cal.Atty.Gen 52 (2001) citing [Sen. Appropriations Com., Rep. on Sen. Bill No. 82
(1995-1996 Reg. Sess.) as amended May 1, 1995, p. 1.].)
Supporting this view of the scope of the definition is California Teachers Assn. v.
Governing Board of San Diego Unified School District (1996) 45 Cal. App. 4 th 1383
[53 Cal.Rptr.2d 474] (San Diego), where the prohibition on "political activity" of teachers in
the classroom setting was limited to the election of a candidate or ballot measure or other
activity of a partisan nature. In San Diego, the buttons worn by teachers urged a "no" vote on
a statewide proposition concerning school vouchers. As such, the decision in San Diego
correctly applied Education Code section 7054 which provides that no District funds, services,
supplies or equipment shall be used to urge the support or defeat of any ballot measure or
candidate. The issue before the court in San Diego was whether the Education Code helped
the district "protect itself from the risk of having political views attributed to it by restricting
political activities in curricular settings." (Id at p. 1391.)
Similarly, the Board finds another cited case, Wilmar Union Elementary School District
(2000) PERB Decision No. 1371 (Wilmar), distinguishable from this one. There, the Wilmar
teachers association created buttons shaped like business cards showing support for three
candidates for the district board of trustees. Here, by contrast, the buttons communicated
support for the Association and/or its bargaining demands; not to demonstrate support for or
15

opposition to electoral candidates. 	Such communication facilitates the flow of information
between teachers and the trustees regarding matters important to achievement of harmonious
employer-employee relations. In this case, unlike San Diego and Wilmar, the collective-
bargaining-related speech on the buttons is clearly not attributable to the District.
As noted above, a central purpose of EERA, as with all labor legislation at the state and
federal levels, is to promote stable labor relations. A classic means of fostering such stability
is by promoting clear and open communication between the parties during labor negotiations in
an effort to achieve continuous public service throughout every step of the bargaining process.
EERA section 3540 expressly states, in pertinent part:
It is the purpose of this chapter to promote the improvement of
personnel management and employer-employee relations within
the public school systems in the State of California by providing
a uniform basis for recognizing the right of public school
employees to join organizations of their own choice, to be
represented by the organizations in their professional and
employment relationships with public school employers, to select
one employee organization as the exclusive representative of the
employees in an appropriate unit, and to afford certificated
employees a voice in the formulation of educational policy.
As the Education Code does not mandate an expansive statutory definition of political activity,
the Board will not expand the definition through its case law in any way that would disrupt
these important purposes of EERA. 	Accordingly, the Board rejects the District's contention
that the buttons at issue can be considered "political activity" within the meaning of Education
Code section 7055.7
7Indeed, under the District's interpretation, any speech regarding an issue in
controversy between an employee organization and a public employer would involve a matter
"of or relating to government, a government, or the conduct of government affairs." Thus,
public employees - because they are public employees - could be barred from expressing their
opinions on any matters related to collective bargaining, while private sector employees would
not be so barred. This would be an ironic outcome, given that public employees enjoy
16

constitutional speech protections in the workplace that private employees do not possess.
(See, e.g., Kirchmann v. Lake Elsinore Unified School Dist. (1997) 57 Cal.App.4 th 595
[67 Cal.Rptr. 2d 268]; Waters v. Churchill (1993) 511 U.S. 661 [128 L.Ed 24 556].)
17
REMEDY
EERA section 3541.5(c) gives PERB:
. . . the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
of employees with or without back pay, as will effectuate the
policies of this chapter [EERA].
In the present case, the District has been found to have violated EERA section 3543.5(a) and
(b) by prohibiting certificated employees from wearing buttons related to collective bargaining
in instructional areas while students are present. It is therefore appropriate to direct the
District to cease and desist from such conduct.
In its post-hearing brief, the Association argues that the District should also be directed
to rescind the entire policy and regulation. This remedy, however, would exceed the scope of
the violation. As previously noted, the Association does not argue that the policy and
regulation violated EERA in banning bargaining-related classroom discussions or classroom
signs. Although the District may choose to modify or rescind the policy and regulation
altogether, it should also have the option of revising the policy and regulation so as not to
prohibit bargaining-related buttons.
It is also appropriate to direct the District to post a notice incorporating the terms of the
order in this case. Posting of such a notice, signed by an authorized agent of the District, will
provide employees with notice that the District has acted in an unlawful manner, is being
required to cease and desist from this activity, and will comply with the order. 	It effectuates

the purposes of EERA that employees be informed both of the resolution of this controversy
and of the District's readiness to comply with the ordered remedy. (Placerville Union School
District (1978) PERB Decision No. 69.)
ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire record in
this case, it is found that the East Whittier School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.5(a) and (b), by
prohibiting certificated employees from wearing buttons related to collective bargaining in
instructional areas while students are present.
Pursuant to EERA section 3541.5(c), it is hereby ordered that the District, its governing
board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Prohibiting employees from wearing buttons related to collective bargaining.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Rescind or revise Policy 4142 and Administrative Regulation 4142 so
that they do not prohibit employees from wearing buttons related to collective bargaining.
2. Post copies of the Notice attached hereto as an Appendix at all locations
where notices to certificated employees are customarily posted. The Notice must be signed by
an authorized agent of the District, indicating the District will comply with the terms of this
Order. 	Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure the Notice is not reduced in size, altered, defaced or
covered with any other material.
18

3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The District provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on East Whittier Education Association.
Member Whitehead joined in this Decision.
Chairman Duncan's dissent begins on page 20.
19

DUNCAN, Chairman, dissenting: I strongly dissent. The unfair practice charge
alleged that the East Whittier School District (District) has violated the Educational
Employment Relations Act (EERA) by adopting a policy limiting the wearing of buttons
related to collective bargaining while in the elementary classroom during instructional times.
After a complete review of the record and hearing oral argument presented by the
parties, I believe we should find in this particular case that the policy is narrowly tailored and
under the facts presented here the charge should be dismissed, based on the reasoning set forth
below.
As the parties have presented the facts of this case, a confluence of two lines of cases
has been created. The union button cases and the political button cases. There are many
arguments that buttons related to collective bargaining are or are not political. Whether they
are or not can turn on how one defines political.
A brief overview of these two lines of cases is appropriate before addressing the issues
of this case.
History of Union Button Cases
In 1993, the Public Employment Relations Board (PERB or Board) set the enduring test
applied in cases where the wearing of union buttons in the workplace is at issue. In State of
California (Department of Parks and Recreation (1993) PERB Decision No. 1026-S (Parks and
Recreation), the Board found that the right to wear union buttons in the workplace is protected
activity but is subject to reasonable regulation. 	Parks and Recreation cited and followed the
Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad) test and added that
if special circumstances exist, then the employer may well be allowed reasonable regulation.
The Carlsbad test is multi-pronged. 	In Carlsbad, the test for violations of EERA
section 3 543 (a) was set forth:
20

1. A single test shall be applicable in all instances in which
violations of section 3543.5(a) are alleged;
2. 	Where the charging party establishes that the employer's
conduct tends to or does result in some harm to employee rights
granted under the EERA, a prima facie case shall be deemed to
exist;
3. Where the harm to the employees' rights is slight, and the
employer offers justification based on operational necessity, the
competing interest of the employer and the rights of the
employees will be balanced and the charge resolved accordingly;
4. 	Where the harm is inherently destructive of employee rights,
the employer's conduct will be excused only on proof that it was
occasioned by circumstances beyond the employer's control and
that no alternative course of action was available;
5. Irrespective of the foregoing, a charge will be sustained where
it is shown that the employer would not have engaged in the
complained-of conduct but for an unlawful motivation, purpose
or intent.
Turlock
On August 9, 2001, a PERB administrative law judge (ALJ), Gary Gallery (Gallery),
issued his proposed decision in an unfair practice charge case filed by the Turlock Teachers
Association (TTA) against the Turlock Joint Elementary School District. 	In that case, there
was an ongoing negotiation between TTA and the district. The outstanding issues included
peer assistance and review, binding arbitration, agency fee, salary and benefits. 	TTA resolved
to begin an intense activity in the community to put pressure on the board of trustees to settle
the dispute. As part of that campaign, buttons were created for the teachers to wear. The
message of the buttons was to convey that Turlock teachers were no longer number one in
salary in the county. 	The purpose of wearing them was to build solidarity among its members
and to express the collective opinion of unit members to the district about bargaining demands.
The ALJ stated that teachers must not wear political buttons, including buttons covering
union political activities, during class or in other instructional settings. He noted this view was
21

supported by California Teachers Association v. Governing Board of San Diego Unified
School District (1996) 45 Cal.App.4 th 1383 [53 Cal.Rptr.2d 474] (San Diego).1
ALJ Gallery then looked at whether the prohibition in the Turlock policy violated a
teacher's rights under EERA. TTA argued that the right to wear buttons in the workplace had
long been protected activity and cited the Parks and Recreation case in support of that right.
The ALJ, however, pointed out that in that case, PERB went further and said, "The right to
wear buttons is not unlimited and is subject to reasonable regulation. 	If special circumstances
exist, then the employer may well be within its rights to limit or prohibit the wearing of buttons
by employees." (ALJ Gallery proposed dec. at p. 3.) He also disagreed with TTA that the
Education Code restrictions did not apply.
TTA believed that San Diego should not apply because EERA was not raised there.
The ALJ found Wilmar Union Elementary School District (2000) PERB Decision No. 1371
(Wilmar)2 controlling.
The purpose of wearing the button was to cause the governing board of trustees to
change its position at the bargaining table. This goal was to be the result of showing solidarity
The	The court of appeal upheld the school district policy preventing teachers from wearing
buttons related to a statewide initiative while they were in the classroom. The restriction,
according to the court, was authorized under Education Code section 7055. Further, it held
that the restrictions did not violate either the U.S. or California State Constitutions because it
was narrowly tailored to restrict the speech sponsored by the District. (San Diego at p. 1387.)
The policy could only be applied in instructional settings. The court first addressed
under what circumstances political activity by the district's employees fell within a district's
power to dissociate itself from political controversy. 	The conclusion was that the restriction
could prohibit employees from engaging in political activity in instructional settings. 	(San
Diego at p. 1392.) This was considered by the court to be an appropriate restriction as to the
time, place or manner of speech.
2In Wilmar, the Board found that buttons and a sign in a teacher's (she was also a union
representative) vehicle parked in the school parking lot, in support of candidates for the school
board, were political and could be restricted under Education Code section 7055. This case is
discussed under the "History of Political Button Cases" section, below.
22

among the teachers, fostering communication between members, and expressing the collective
opinion of unit members to the district about TTA's bargaining demands by wearing the
button. 	"Clearly, the teachers' wearing of the button was in regard to the conduct of the board
of trustees, a governmental entity, and thus, constituted 'political activity' within the meaning
of Education Code section 7055." (ALJ Gallery proposed dec. at p. 4.)
Based on San Diego and Wilmar, ALJ Gallery found the district restriction to be
reasonable. 	He proposed dismissing the complaint and unfair practice charge.
East Whittier I
The controversy over union buttons in the elementary school classroom first came to
the District in an unfair practice charge (East Whittier City Elementary School District (2002)
PERB Decision No. HO-U-800-E (East Whittier D). This decision was made by ALJ Tom
Allen (Allen) and was not appealed. It is therefore binding on the parties.
The District adopted a policy limiting when employees could wear any signs, buttons,
or other objects favoring or opposing any matter that was the subject of negotiations between
the District and the exclusive bargaining representative, California School Employees
Association (CSEA). The limitation was that these could not be worn in the presence of
students.
The motivation for the policy, according to the District, was that all matters related to
collective bargaining negotiations be kept out of the classroom and other instructional areas by
both the exclusive bargaining representative and the District.
The ALJ saw the issue as whether the District unlawfully interfered with employee
rights to wear union buttons. Buttons stating "Strength through Unity" were allowed in the
classroom but buttons that stated "Fair Contract Now" were not. 	The classified employees
most impacted were the instructional aides because they spent more of their time in the
23

classroom when students were present. 	That was contrasted with the custodians who were
usually in classrooms when no students were present.
ALJ Allen found that wearing a union button has long been a protected right.
Therefore, CSEA did establish a prima facie case using the Carlsbad test. Under prong two of
the test, he said that there was harm to the union members but that the harm was slight.
The burden then shifted to the District to show a valid reason for this policy. ALJ
Allen found the District offered a justification under the operational necessity to limit
classroom distractions. CSEA argued that it was necessary for the District to show
"extraordinary circumstances" based on Parks and Recreation. 	The ALJ disagreed and noted
that that case did not alter the Carlsbad test. Parks and Recreation was distinguished because
in that case the buttons were banned completely not by time, place or manner.
Because East Whittier I did not impose a total ban, he believed the harm was slight and
the burden was therefore less than it was on the employer in Parks and Recreation. Further, he
noted that in Parks and Recreation most of the employees did not interact with the public. He
believed that in the East Whittier I case the instructional aides interacted with a "public" of
elementary and middle school students who were supposed to be focused on their curriculum.
He noted at least some of them were easily distracted, based on the evidence.
In East Whittier I, prongs two, three and four of the Carlsbad test were found applicable
-
and used in balancing the competing interests of the parties.
Turlock I (PERB Decision)
Both parties filed exceptions to the ALJ proposed decision in Turlock Joint Elementary
School (2002) PERB Decision No. 1490 (Turlock ft. The Board did not agree with the ALJ.
The proposed decision of the ALJ was reversed on the basis that the Board did not agree with
the "finding that the wearing of a button in support of bargaining which advertises that the
24

District's teachers were no longer number one in compensation is 'political activity' prohibited
by the Education Code." The Board found the district interfered with "employee rights
guaranteed by EERA in violation of Section 3543.5(a) and (b) by prohibiting the wearing of
the button at issue." (Turlock I at p. 1; fn. omitted.)
The Board did not agree with the ALJ that the buttons in this case came under the
parameters of Education Code section 7055 and stated "[w]hen 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. 	Such
a role would fail to distinguish between the trustees' role as the employer under EERA and
their activity as candidates for elected office or as incumbents seeking preservation of their
offices or reelection."
The Board went further and said, "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 the election of a candidate or a ballot measure." Attorney
General Opinions were cited in support of this premise.3 San Diego was distinguished by the
Board because the buttons worn were related to a statewide proposition. PERB saw the issue
in that case as, "whether the Education code helped the district 'protect itself from the risk of
having political views attributed to it by restricting political activities in curricular settings."
(Id. at p. 1391.)
3The opinions related to teachers wearing political buttons in class
(77 Ops.Cal.Atty.Gen. 56) and teachers wearing political buttons at back-to-school-night
(84 Ops.Cal.Atty.Gen. 106). The opinions indicated teachers could not wear political buttons
in class but could wear them to back-to-school-night. 	There was no definition of the term
"political."
25

PERB pointed out that the ALJ had seen the purpose of wearing the button in Turlock I
was "to cause the governing board of trustees to change its position at the bargaining table"
and indicated the Board itself believed "[t]his purpose, within the context of collective
bargaining, is critical to the determination of this case."
PERB also distinguished Turlock I based on the belief that the buttons and sign in that
case were related to a board of trustees election and not collective bargaining issues. The
Board stated:
Here, by contrast, the buttons communicated TTA's concerns
about salary comparisons with other school districts in Stanislaus
County in order to influence the District's position at the
bargaining table, not to demonstrate support for or opposition to
electoral candidates. 	Such communication facilitates the flow of
information between teachers and the trustees regarding matters
important to achievement of harmonious employer employee
relations, consistent with the fundamental purposes of EERA.
That decision also noted that the district did not put forth any argument or evidence that
special circumstances4 existed in this case. PERB held that "teachers [had] a right to wear the
union buttons unless 'special circumstances' were established under EERA or they were found
to violate the Education Code."
Turlock I issued on July 17, 2002.
East Whittier II (Proposed Decision)
In June 2003, another District union button case came before ALJ Allen. This is the
case now before PERB. 	The specifics of the case are addressed below. In light of the Turlock
decision, ALJ Allen found the District failed to show that the special circumstances of student
distraction and student sensitivity were sufficiently high to justify the policy that union buttons
could not be worn in the classroom.
This was an exception set forth in Parks and Recreation.
26

Turlock II (Court of Appeal)
Six months after the ALJ proposed decision in East Whittier II, the Fifth District Court
of Appeal held in Turlock Joint Elementary School District v. PERB (2003) 112 Cal.App.4 th
522 [5 Cal.Rptr.3 rd 308] (Turlock II) that wearing union buttons in the classroom constituted
political activity subject to restriction by the school district. This reversed the Turlock I
decision.
In reversing, the court of appeal addressed the question, "whether a teacher's wearing
of union buttons in the classroom during class time constitutes 'political activity,' which may
be restricted by the District under the Education Code." (Turlock II at p. 310.)
The court issued a peremptory writ of mandate directing PERB to vacate its July 17,
2002, decision (Turlock I) and issue a new decision dismissing the complaint and the
underlying unfair practice charge. Costs were awarded to the district. (Turlock II at p. 319.)
PERB complied and issued the new decision.
Turlock (California Supreme Court)
The TTA appealed to the California Supreme Court. On January 22, 2004, the Supreme
Court denied review and ordered the case to be "Not Published".5
History of Political Button Cases (and constitutional concerns)
A number of cases addressed the wearing of buttons that did not have a union collective
bargaining message. The message was, in those cases, an uncontroverted political message.
Some of these such as San Diego and Wilmar, have been referenced, above. Wilmar
included not only the issue of political buttons but also a political sign.
Under the California Rules of Court 979(d), the Supreme Court, on its own motion,
may order an opinion of a court of appeal depublished. Depublication shall not be deemed an
expression of opinion of the Supreme Court of the correctness of the result reached by the
decision or of any of the law set forth in the opinion.
27

There have been cases brought arguing that any attempt to restrict the freedom of
expression of teachers is illegal as a violation of the freedom of speech, right to associate or
other constitutional concerns. These cases have not been limited to California. While the
cases from other states are not binding, some do provide insight into setting forth the critical
issues.
In Green Township Education Association v. Stephen P. Rowe, et al. (2000) 328 N.J.
SUPER. 525, 746 A.2d 449 [164 LRRM 2180] (Green Township), the issues related to
employees campaigning on school property in support of a candidate. 	The buttons at issue in
that case read, "NJEA SETTLE NOW". The policy challenged was in relation to political
activity but the button was in support of the teachers' union. The union challenged the school
conflict of interest policy stating it was a restriction on freedom of speech.
The court found that parts of the policy did restrict constitutionally protected conduct
but found the restriction against the buttons acceptable.
The policy in question, applicable here, reads, "All employees are prohibited from
engaging in any activity with students during performance of the employees' duties, which
activity is intended or designed to promote, further or assert a position on any voting issue,
board issue, or collective bargaining issue." (Green Township at p. 529.)
The union argued the restriction was overbroad and further argued that the button
reading "NJEA SETTLE NOW" was allowed under the first amendment because it related to
an issue of public concern. (Id. at p. 530.)
The Board countered that this was a restriction only in place during the time that
teachers were in the school building and in the presence of students.
The court agreed the buttons did pertain to a question of public concern but balanced
the interests involved and determined that, "[a]s innocuous as the buttons may seem, their
28

message is a political grievance, and there is no useful purpose in subjecting whole classrooms
of children, who are a captive audience for most of the day and who cannot vote, to that
message." (Id at pp. 530-531.)
The court then addressed the overbreadth issue and went through a recitation of a
number of significant constitutional law cases, some of which have significant bearing on the
case before us.
Of particular note, is the language from Green Township:
Although educational policy and labor relations are undoubtedly
subjects of public concern, teachers obviously have a personal
stake as well in seeking solutions and resolving problems in these
areas. Whatever interest teachers have in expressing their views
concerning the operation of the public schools is surely
diminished in the setting of the classroom and the presence of
students. The objective of the teacher in this context must be to
educate his or her students and not to advance his or her self-
interest. 	Conversely, the Board of Education has no interest in
barring teachers from expressing their views on educational
policy. 'But where government is employing someone for the
purpose of effectively achieving its goals,' Waters v. Churchill,
511 U.S. at 675, 114 S.Ct. at 1888, 128 L.Ed. 2d at 699, it has an
interest in restricting its employee's speech in order to
accomplish that objective.
The court noted also, that
teachers serve as authority figures, and students are their captive
audience. A classroom is not a free market of ideas. There is
often no counterpoint to the views expressed by the teacher.
Against this backdrop, we see nothing amiss in the Board's
insistence that teachers confine their classroom activities to
promoting the education of their students. 	[Id at p. 539.]
In Green Township the buttons related to collective bargaining were seen as political
buttons. The resolution was a balance between the free speech concerns of the union and a
reasonable restriction based on a time, place and manner analysis. The restriction was related
to what the teachers were supposed to be doing in class, namely teaching the curriculum, not
furthering their own financial interests.
29

It is significant that the students are required to be in the classroom and have no option
of leaving. It is also possible that there would be cases where the students were encouraged to
participate in conveying the teacher's message as well.
In Konocti Unified School District (1982) PERB Decision No. 217 (Konocti)	, 	, a bus
driver, who was the president of the union and chairman of its negotiating team, stopped the
school bus he was driving on the way to school and urged the students on the bus to stay out of
school if the union went on strike.
___
The union argued that public employees have a legitimate interest in communicating
with students about labor disputes between the district and employee organizations. The Board
found the activity of the bus driver was unprotected. 	It found,
Franklin's actions on the bus were conducted in an indefensible
manner and are, consequently, unprotected. The incident
occurred while Franklin was on duty and while transporting
students to school. By making such an unauthorized stop, he
temporarily interrupted his work to conduct organizational
business without authorization and probably in violation of
existing work rules. Further, he delivered his appeal to boycott
classes to young students, likely to be impressionable and who
were forced to hear it without being given the opportunity to
leave.
The Instant Case
Association's Position
Here, the teachers object to a District policy that states, in relevant part:
It shall be the policy of the Board of Education that all matters
related to collective bargaining negotiations shall be kept out of
the classroom and other instructional areas in the presence of
students by both the exclusive bargaining representatives and the
District.
District employees shall not initiate any discussion with students
in any District classroom or in other instructional areas that are
related to collective bargaining negotiations between the District
and the exclusive bargaining representatives. District employees
shall not wear or otherwise display in the classroom or in other
30

instructional areas in the presence of students, any signs, buttons
or other objects that favor or oppose any matter that is the subject
of negotiations between the District and the exclusive bargaining
representatives. [6]
The unfair practice charge arose after some teachers wore a button into their classrooms
that said, "It's Double Digit Time." There were also some other buttons. The District had not
objected to "Make Teachers a Priority." The District believed that was facially neutral and did
not believe that appeared related to collective bargaining.
The East Whittier Education Association (Association) position is that the proposed
policy infringed on the teacher's rights of free speech and their right to show unity. 	The
Association also put on testimony about the classroom activities such as spirit day, pajama day
and crazy hat day, et al., to show that these caused disruption and were accepted by the
administration.
District's Position
The District did not think the policy was a problem because it did not restrict teachers
from wearing all buttons at all times.
The ALJ noted,
One District middle school assistant principal testified . .. during
lunchtime, nutrition and passing periods some nine or ten
students asked him what the button meant and if the teachers
were going on strike. He answered that the teachers were not
going on strike and that negotiations were taking place, but the
students seemed unsatisfied. Because students were talking about
the button as they came out of the classrooms during passing
periods, he said he would 'assume that possibly some of this
discussion had taken place in the classroom.' 	[East Whittier I
(ALJ Allen proposed dec. at p. 6).]
6 District Administrative Policy 4142.
31

ALJ's Position
The ALJ applied the Carlsbad test to the question of whether the District interfered with
employee rights to wear union buttons.
He looked specifically at the two, three and four prongs of the test as those potentially
applicable here. He cited Turlock I. Following that case specifically he found the employer
had violated EERA by banning bargaining related buttons during teaching. He stated that
based on that case the employees' right under EERA to wear buttons remained intact, and
stated further,
Under Turlock and Carlsbad, the District appears to have a fairly
heavy burden in this case to prove 'special circumstances' that
might justify its policy and regulation. 	In its post-hearing brief,
the District argues in part that special circumstances are
'inherent' in the elementary school district classroom. 	This
argument, however, is contrary to PERB's conclusion in Turlock
that an elementary school district violated EERA by telling
teachers not to wear bargaining-related buttons while teaching.
Even though the employer in Turlock was an elementary school
district, and even though the limitation on buttons specifically
applied to the classroom, PERB found 'no evidence' of special
circumstances.
The ALJ did note that PERB had not defined special circumstances, but stated that the
National Labor Relations Board had set forth some "special considerations," none of them,
however, were the same context as a public elementary school. Although PERB did not set
forth specific special circumstances he noted that in Turlock I PERB indicated safety,
discipline and disruption as possible special circumstances.
State of the Law at Present
When the California Supreme Court de-published the court of appeal decision in
Turlock II, it did not vacate the holding. The law at present is that the PERB decision was
reversed and the complaint and charge filed were dismissed. The result is that union buttons
32

still cannot be worn in the classroom in Turlock schools. 	The underpinning for the ALJ
decision in this case is gone.
The union button cases noted, supra, are different than the case at hand. The Parks and
- -
Recreation case is not on an elementary school campus. Turlock I is on an elementary school
campus and the decision in that case is that teachers may not wear buttons in class. The East
Whittier I ALJ proposed decision is founded on law that no longer exists.
The political button cases noted, supra, allow for a time, place and manner restriction of
free speech and note the school districts have the right to set the curriculum for teachers and
that includes the subjects discussed or addressed during instruction. Those cases note the
students are a captive audience and not involved in the bargaining process.
It is correct to look at how accessible to others the classroom is. Elementary schools
are not public places. Members of the public, even parents of students do not have any access
to the classrooms while classes are in session, without registering at the school and receiving
permission to be there. The school board hires the teachers to teach the curriculum as adopted
by the school board. The standard to be applied to a teacher's classroom expressions has been
stated as
.. . teachers retain their First Amendment right to free speech in
school. 	[Cit] On the other hand, it is well-settled that public
schools may limit classroom speech to promote educational
goals. 	[Cit.] 	Courts have long recognized the need for public
school officials to assure that their students 'learn whatever
lessons [an] activity is designed to teach, that readers or listeners
are not exposed to material that may be inappropriate for their
level of maturity, and that the views of the individual speaker are
not erroneously attributed to the school.' 	[Cit.]
'In light of these competing principles we find that a school
committee may regulate a teacher's classroom speech if: 	(1) the
regulation is reasonably related to a legitimate pedagogical
concern, [cit.]; and (2) the school provided the teacher with
notice of what conduct was prohibited [cit.].'
33

. . . . . . . . . .
'[A] teacher's classroom speech is part of the curriculum. . . .
Thus, schools may reasonably limit teachers' speech in that
setting. [Cit.] [7]
The Konocti case notes, significantly, that when the employee deviates from the duty at
hand, the activity is not protected. The EERA covers protected activity. Teachers can
however, according to the California Attorney General,8 wear buttons at back-to-school-night,
and other places on campus.
That, coupled with an appropriate time, place, manner restriction on the employees'
right to wear a union button shows a rule allowing buttons at non-instructional places and
times, outside the presence of students. 	This does not prohibit teachers from wearing union
buttons at other times and places, including times and places on the school property. It does
however make it more likely that the curriculum adopted by the district will be what is
discussed in class as opposed to a discussion of the teacher's financial interest in collective
bargaining with the district.
The key is not whether the buttons are disruptive but rather, more importantly, that they
are not part of the curriculum and there is no one in the classroom to which a presentation of a
viewpoint on collective bargaining is relevant or appropriate. The Association, at oral
argument, indicated the wearing of the buttons is a benefit to the employer to allow it to gauge
the level of employee interest in a subject. It is irrelevant in this situation as to whether or not
wearing union collective bargaining buttons is a benefit to the employer and lets it know the
heartbeat of the union because there are no employer representatives in the elementary school
classroom.
7Ward v. Hickey (1 st Cir. 1993) 996 F.2d 448, cited in 77 Ops.Cal.Atty.Gen. 56 at p. 5.
884 Ops.Cal.Atty.Gen.
34

Under the Republic Aviation9 test, set out in State of California (Employment
Development Department) (2001) PERB Decision No. 1365a-S (State of California'), the state
was permitted to restrict unity break activity that did not occur during non work time in a non
work area. 	Citing Republic Aviation, the Board noted that the Supreme Court stated,
-
. . . time outside working hours, whether before or after work, or
during luncheon or rest periods, is an employee's time to use as
he wishes without unreasonable restraint, although the employee
is on company property. 	It is therefore not within the province of
an employer to promulgate and enforce a rule prohibiting union
solicitation by an employee outside of working hours, although
on company property. 	Such a rule must be presumed to be an
unreasonable impediment to self-organization and therefore
discriminatory in the absence of evidence that special
circumstances make the rule necessary in order to maintain
production or discipline. [Id, 324 U.S. at 803, fn. 10, quoting
Peyton Packing Company (1943) 49 NLRB 828, 843-844 [12
LRRM 183].]
The court in Peyton Packing Company (1943) 49 NLRB 828 [12 LRRM 183] also
included the following: 	"Work time is for work. 	It is therefore within the province of an
employer to promulgate and enforce a rule prohibiting union solicitation during working
hours."
In Richmond Unified School District/Simi Valley Unified School District (1979) PERB
Decision No. 99 (Richmond) the Board adopted the test of Republic Aviation, and in State of
California the Board said:
From Richmond and the other cases cited, it is clear that
employees have the Dills Act protected right to communicate
with each other at the worksite concerning their terms and
conditions of employment during nonwork time in nonwork
areas. Employees must be given leeway in the exercise of this
right, which may be restricted by the employer only when it can
be demonstrated that it is necessary to maintain order, production
or discipline. In circumstances in which employees in a work
9Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 [16 LRRM 620] (Republic
Aviation).
35

setting not accessible to the public all take their lunch or break in
their work area at the same time, it is considered a nonwork area
during that nonwork time.
But the cited cases also lead to the conclusion that activities such as the unity break at
issue there may be restricted by the employer if they do not occur during nonwork time in
nonwork areas.
In the instant case, the District has not prohibited the right of teachers to wear union
buttons on campus. Instead, they have been restricted to non-instructional times and places.
Under the Republic Aviation test, the District has crafted a narrowly tailored restriction that is
appropriate. The Association should be required to show the restriction is unreasonable in
order to prevail. With this rule in mind, let me emphasize that each policy must be reviewed
on a case-by-case basis. 	Let me emphasize also that here the District has not set out a policy
forbidding the wearing of union buttons at work. The Association has not convinced me that
the District restrictions are unreasonable.
The policy does limit the language on the buttons that can be worn in the instructional
areas. What is presented in the classroom can be set by the District as it controls the
curriculum. It is naive to think that there would never be any curiosity or question about a
button in an elementary school classroom. With this policy there likely won't be and the
classroom time can be devoted, as it should be, to learning the set curriculum. The teachers are
free to wear their buttons related to collective bargaining at back to school night or in the
teacher's lounge or the administrative offices or even in the hallways where there is a greater
chance that someone who is aware of the collective bargaining issues will see them and be
influenced one way or the other. That is outside the instructional area and time can be taken to
answer student questions that arise.
36	.

The teachers are hired and paid to teach the curriculum, not promote their financial
interests, that is outside the scope of their duties in the classroom. The buttons are not
prohibited here, they are just removed from being a part of the instructional setting where
students are captive. I believe the fact that the public is not allowed in elementary school
classrooms during instructional time is also a special circumstance. No one in the classroom
can address the issues related to collective bargaining and that makes the buttons inappropriate
in those special circumstances.
In the hearing in this case, there was a lot of testimony as to special days in classrooms
such as crazy hat day, pajama day and spirit day. 	The Association argued these were more
distracting to the class than a button would be. I believe it is different when the whole class
participates in a planned activity, such as one of the special days listed. In that setting, all of
the students know ahead of time it will happen and can participate if they chose.
With the teacher suddenly wearing an innocuous button without explanation, the
speculation possibilities are endless. Further, children do not always ask about things when
they are concerned or confused. 	It is no more speculative to suggest that situation than to
suggest student anxiety would have been detected by the staff and might have been addressed
without banning the buttons themselves.
Based on the Republic Aviation test set out and adopted by the Board in Richmond and
State of California, I would dismiss the charges.
37

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-4264-E, East Whittier Education
Association v. East Whittier School District, in which all parties had the right to participate, it
has been found that the East Whittier School District violated the Educational Employment
Relations Act (EERA), Government Code section 3543.5(a) and (b), by prohibiting certificated
employees from wearing buttons related to collective bargaining in instructional areas while
students are present.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Prohibiting employees from wearing buttons related to collective bargaining.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
Rescind or revise Policy 4142 and Administrative Regulation 4142 so that they
do not prohibit employees from wearing buttons related to collective bargaining.
Dated: 	EAST WHITTIER SCHOOL DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.