Regents of the University of California (PERB 2880H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TEAMSTERS LOCAL 2010,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. SF-CE-1198-H
PERB Decision No. 2880-H
October 24, 2023
Appearances: Beeson, Tayer & Bodine by Susan K. Garea, Attorney, for
Teamsters Local 2010; Jennifer N. Henry, Labor Relations Advocate, for Regents of
the University of California.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
BANKS, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Teamsters Local 2010 (Teamsters) to the
proposed decision of an administrative law judge (ALJ). The complaint alleged in
relevant part that the Regents of the University of California interfered with protected
rights in violation of the Higher Education Employer-Employee Relations Act (HEERA)
when it implemented a policy prohibiting a skilled trades employee from placing a
union insignia bumper magnet on the University vehicle assigned to him.1 Following
an evidentiary hearing, the ALJ dismissed the allegation, finding the policy did not
1 HEERA is codified at Government Code section 3560 et seq. Unless
otherwise specified, all statutory references herein are to the Government Code.

2
interfere with employee protected rights, and that even had Teamsters proven a prima
facie case, the University established its affirmative defense by showing special
circumstances required the prohibition.
Based on our review of the proposed decision, the entire record, and relevant
legal authority, we conclude the University failed to demonstrate special
circumstances that would justify its total prohibition against union bumper magnets on
University-assigned vehicles. Accordingly, we find the University interfered with
protected rights, and we reverse the proposed decision.
FACTUAL AND PROCEDURAL BACKGROUND
The University is a higher education employer within the meaning of HEERA
section 3562, subdivision (g). Teamsters is an exclusive representative within the
meaning of HEERA section 3562, subdivision (f), representing employees in the
skilled trades units at the University. At all times relevant, Eduardo Rosales was a
trustee for and President of Teamsters and a higher education employee in the skilled
trades bargaining unit at the University. At all times relevant, Aaron Mahn was a
supervisor within the meaning of HEERA.
Rosales, who has worked as an electrician for the University at its San Diego
campus (UCSD) since 1991, operates the University truck that is assigned to him.
Rosales and the other two skilled trades employees in his department spend much of
the workday in the field with their respective University-assigned trucks. The trucks are
not rotated or reassigned; indeed, since 1991, Rosales has been assigned three
trucks in total, receiving a new assigned truck when UCSD upgrades its vehicles.
UCSD maintains a vehicle usage policy which states, in part,

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“No other decals, stickers, or other signs, including
dealer-identified license plate holders, shall be placed on
any University vehicle, except that a Chancellor may
authorize exceptions on a case-by-case basis.”
In 2018, Rosales distributed to unit members Teamsters magnets that affix to a
vehicle bumper and to other metal surfaces. The bumper magnets leave no residue
and cause no damage to a vehicle. They can be removed nightly or when the driver
ceases operating the vehicle. The bumper magnets contain the Teamsters’ union
insignia and the message “We are Teamster Strong!”2
In May 2018, Rosales placed two Teamsters magnets on the bumper of the
UCSD vehicle assigned to him. He displayed the magnets to show support for his
union and had no intent to convey a message about UCSD’s beliefs. During the entire
period that Rosales displayed the Teamsters magnets, UCSD never received any
complaints about them. In July 2018, at UCSD Labor Relations’ instruction, Rosales’
supervisor Mahn directed Rosales to remove the Teamsters magnets from his truck.
Rosales complied with the directive. When he issued the directive, Mahn thought the
bumper magnets were permanently affixed and did not know they were magnetic.
At the time that Mahn directed Rosales to remove the Teamsters magnets from
his University-assigned truck, the truck displayed a license plate frame advertising a
local car dealership. Neither Mahn nor any other UCSD representative instructed
Rosales to remove the frame, and it remained on his vehicle.
2 UCSD has never claimed that this is an offensive message, nor do we find
that it is objectively so.

4
At that same time, other UCSD skilled trades employees had affixed personal
stickers to their UCSD vehicles that did not reference the Teamsters. For instance, a
painter had multiple personal stickers on the UCSD vehicle he operated, including a
sticker for the band “Guns N Roses,” and a sticker for the restaurant, “L & L Hawaii.”
These stickers have been displayed for years, both before and after Rosales was
directed to remove the Teamsters magnets. The stickers continued to be displayed at
least through the day before the formal hearing in this case. Rosales himself had also
displayed “Raiders” decals on the window of the truck’s cab, and no UCSD
representative had ever directed him to remove them. Additionally, a UCSD
Information Technology vehicle displayed a “Klein Tools” sticker through at least the
second day of the formal hearing in this matter. Indeed, the University could point to
no instance in which it had enforced its “no sticker” policy prior to Mahn directing
Rosales to remove the Teamsters magnets. The record is clear that the University’s
selective enforcement continued up to and even during the hearing.
UCSD permits employees to display union insignia in their cubicles, at and
around their desks, and on their lockers. This includes display in areas accessible to
the public and for employees who interact with the public. For example, a UCSD
employee whose cubicle is in the public lobby of the extension office openly and
visibly displays Teamsters insignia. UCSD employees hang posters, banners,
magnets, and Teamsters-decorated Christmas trees inside and outside their cubicles.
There is no record of any complaints regarding such displays. The cubicles, desks,
and lockers are UCSD property.

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Employees display the same Teamsters magnets on University-owned vehicles
at other campuses, including, for example, University of California, Merced (UC
Merced) and University of California, Irvine (UC Irvine). Members of
Teamsters-represented units display the same magnets on vehicles owned by
California State University (CSU) at various CSU campuses, including Cal Poly,
Sonoma State, San Francisco State, CSU East Bay, and San Diego State.
On July 20, 2018, Teamsters filed the unfair practice charge at issue. On
October 11, 2019, PERB’s Office of the General Counsel issued a complaint, which
the University answered on October 31, 2019. The parties participated in an informal
conference on February 10, 2020, but did not reach a settlement. The ALJ conducted
an evidentiary hearing on September 17 and October 5, 2020. The parties filed closing
briefs on February 26, 2021, and the matter was submitted to the ALJ for a decision.
The ALJ issued a proposed decision on December 29, 2022.
Teamsters filed a Statement of Exceptions and a supporting brief excepting to
many of the proposed decision’s factual and legal findings. The University filed a
response, urging us to affirm the proposed decision.
DISCUSSION
The Board enjoys broad discretion in its review of an ALJ’s proposed decision.
(PERB Reg. 32320; Oakland Unified School District (2007) PERB Decision No. 1880,
p. 2.)3 When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

6
However, if a proposed decision has adequately addressed issues raised by certain
exceptions, the Board need not further analyze those exceptions. (Ibid.) The Board
also need not address alleged errors that would not affect the outcome. (Ibid.) To the
extent an ALJ assesses credibility based upon observing a witness in the act of
testifying, we defer to such assessments unless the record warrants overturning them.
(Los Angeles Unified School District (2014) PERB Decision No. 2390, p. 12.)
Before turning to the substantive issues, we address a procedural issue.
Revisions to PERB Regulations that took effect in January 2022 direct an excepting
party to file a single, integrated document—which may be in the form of a brief—while
also authorizing a later reply brief focused on responding to new issues that the
responding party raised in its opposition. (PERB Regs. 32300, subds. (b) and (d),
32312, subd. (c); see also Accelerated Schools (2023) PERB Decision No. 2855,
pp. 8-9.) Here, Teamsters instead followed a practice permitted under the former
version of PERB Regulations, concurrently filing one document entitled “Exceptions to
Proposed Decision” and another entitled “Brief in Support of Exceptions to Proposed
Decision.” We have discretion whether to accept or reject either or both documents.
(Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 14 [although
the respondent’s exceptions failed to cite to legal authority as required by PERB
Regulations, Board nonetheless “thoroughly analyzed the record and applicable law”
to ensure that its order was correct].) Either of Teamsters’ two filings alone is
sufficiently clear to allow us to research and resolve this matter, and we have
exercised our discretion by considering only the document filed in the form of a
statement of exceptions.

7
Here, Teamsters except to, among other things, the ALJ’s finding that it did not
prove a prima facie case of interference and the alternative finding that the University
established an affirmative defense. For the following reasons, we agree with
Teamsters as to both of these central issues.
HEERA section 3565 provides higher education employees “the right to form, join
and participate in the activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee relations and for the
purpose of meeting and conferring.” It is well settled that “the right of employees to self-
organize and bargain collectively . . . ‘necessarily encompasses the right effectively to
communicate with one another regarding self-organization at the jobsite.’” (County of
Sacramento (2014) PERB Decision No. 2393-M at p. 22.) This broad right includes the
right to display union insignia and slogans.
To establish a prima facie interference case, a charging party must show that a
respondent’s conduct tends to or does result in some harm to protected union and/or
employee rights. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36 (San
Diego).)4 A charging party need not show that the respondent acted because of an
unlawful motive. (County of San Joaquin, supra, PERB Decision No. 2775-M, p. 24.)
If a charging party establishes a prima facie case, the burden shifts to the
respondent. (San Diego, supra, PERB Decision No. 2747-M, p. 36.) The degree of harm
dictates the respondent’s burden. (Ibid.) If the harm is “inherently destructive” of
4 Charging party need only show that the employer engaged in conduct that
tends to or does result in at least slight harm to rights guaranteed by statute. (County of
San Joaquin (2021) PERB Decision No. 2775-M, p. 24.)

8
protected rights, the respondent must show that the interference results from
circumstances beyond its control and that no alternative course of action was available.
(Ibid.) For conduct that is not inherently destructive, the respondent may attempt to
justify its actions based on operational necessity. (Ibid.) In such cases, PERB balances
the asserted business need against the tendency to harm protected rights; if the
tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the
category of actions or rules that are not inherently destructive, the stronger the tendency
to harm, the greater is the respondent’s burden to show its business need was
important and that it narrowly tailored its actions or rules to attain that purpose while
limiting harm to protected rights as much as possible. (County of San Joaquin, supra,
PERB Decision No. 2775-M, p. 25.)
Here, Teamsters has established that the University’s conduct tends to or did
result in some harm to protected union and employee rights. Indeed, the University’s
ban on union bumper magnets directly contradicts years of PERB precedent.
California public employees have long had the right to display union insignia in the
workplace. (City of Sacramento (2020) PERB Decision No. 2702-M, p. 9; Superior
Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158, 172; Regents of
the University of California (2018) PERB Decision No. 2616-H, p. 9 (Regents); State of
California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S,
p. 4 (Parks).) This general rule is subject to an exception where special circumstances
justify a narrowly tailored prohibition. (County of Sacramento, supra, PERB Decision
No. 2393-M, p. 20.) The employer has the burden of establishing special
circumstances as an affirmative defense. (Id. at p. 29.) Any restriction on the right to

9
display union insignia and messages regarding working conditions is presumptively
invalid, though, because such activity in the workplace is generally “far less disruptive”
than solicitation and distribution. (Regents, supra, PERB Decision No. 2616-H,
pp. 13-14.)
PERB adapted its special circumstances test from Republic Aviation Corp.
v. NLRB (1945) 324 U.S. 793.5 (Regents, supra, PERB Decision No. 2616-H, p. 10.) It
is unclear why the ALJ in this matter suggested that relevant PERB precedent is not
applicable to the case at hand, as PERB has consistently required an employer to prove
that it has a narrowly crafted any ban based on legitimate special circumstances.6
5 Although California public sector labor relations precedent frequently protects
employee and union rights to a greater degree than does federal precedent governing
private sector labor relations, PERB considers federal precedent for its potential
persuasive value. (Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.)
(2021) PERB Decision No. 2782-M, p. 9, fn. 10; City of Santa Monica (2020) PERB
Decision No. 2635a-M, p. 47, fn. 16; City of Commerce (2018) PERB Decision
No. 2602-M, pp. 9-11; see also Social Workers’ Union, Local 535 v. Alameda County
Welfare Dept. (1974) 11 Cal.3d 382, 391 [when interpreting California public sector
labor relations laws, federal precedent is a “useful starting point,” but it does “not
necessarily establish the limits of California public employees’ representational
rights”]; County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 24, 33, 45-48
& fn. 19 [considering private sector labor law precedent for its persuasive value while
noting certain differences in California public sector labor law precedent]; City of
Bellflower (2020) PERB Order No. Ad-480-M, p. 11 [both “statutory differences and
distinct principles relevant to agencies serving the public have frequently led the Board
to craft sui generis precedent”].)
6 Because federal law is only persuasive and not controlling authority for
interpreting the statutes within our jurisdiction, our previous decision to borrow the
phrase “special circumstances” from federal precedent does not bind us automatically
to subsequent developments in federal law. (Napa Valley Community College District
(2018) PERB Decision No. 2563, p. 13; see also El Camino Healthcare District, El
Camino Hospital, and Silicon Valley Medical Development, fLLC (2023) PERB

10
(Sacramento, supra, PERB Decision No. 2702-M, p. 9; Regents, supra, PERB Decision
No. 2616-H, p. 10.)
When applying the special circumstances test, PERB requires the employer to
make a “concrete, fact-based evidentiary showing” of a special circumstance and
considers such arguments on a case-by-case basis. (City of Sacramento, supra, PERB
Decision No. 2702-M, p. 10.) Relevant factors include whether an insignia or message
is likely to negatively affect operations, such as by posing a safety risk, disrupting
employee discipline, distracting from work demanding great concentration, or damaging
employer property. (Ibid.) Also important is the specific context in which the employer
enacted or enforced the prohibition, the locations involved, industry practice, and the
parties’ past practice. (Ibid.)
Thus, a history of insignia or messages in the workplace without resulting
incidents can undercut an employer’s argument. (City of Sacramento, supra, PERB
Decision No. 2702-M, p. 11; Regents, supra, PERB Decision No. 2616-H, pp. 17-20.)
General, speculative, isolated, or conclusory evidence of potential disruption to an
employer’s operations does not amount to special circumstances. (County of
Sacramento, supra, PERB Decision No. 2393-M, p. 24.) Moreover, PERB will look at
the totality of the circumstances to assess whether the employer’s alleged concern,
Decision No. 2868-M, p. 26, fn. 18 [judicial appeal pending].) Notably, in Regents,
supra, PERB Decision No. 2616-H, we declined to follow the National Labor Relations
Board’s presumption of validity as to restrictions on union insignia and buttons in
patient care areas, and instead continued to follow our traditional rule that a public
entity’s ban on non-business insignia is presumptively invalid if applied against union
insignia, but the employer may rebut this presumption by showing “special
circumstances.” (Id. at p. 15.)

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even if potentially valid, served as a pretext for limiting protected activity. (City of
Sacramento, supra, PERB Decision No. 2702-M, pp. 13-14 [employer’s failure to
require regular inspection of hardhats for damage undermined its professed concern
that stickers could obscure a dent or other hardhat defect].)
Here, the vehicle at issue is owned by the University but individually assigned to
Rosales. Rosales spends much of his workday out and about, in and alongside the
truck, and the magnet reflects the driver’s opinion. The ALJ correctly recognized this
analogy when he reasoned that “[i]n some ways, it is not unlike a button pinned to
employee clothing or insignia added to a uniform because it can be attached and
removed as desired to any particular vehicle assigned an employee for use in
connection with their performing work.”
Moreover, the record fails to show that a union bumper magnet is likely to
negatively affect University operations, such as by posing a safety risk, disrupting
employee discipline, distracting from work demanding great concentration, or damaging
employer property. The basis of the University’s argument is that there is a risk that the
union insignia or message will be attributed to the University itself or will be considered
an endorsement by the University. However, there is nothing in the record to indicate
that any such confusion has occurred or is likely to occur. Mere speculation is
insufficient to outweigh the right to display union insignia in the workplace.7 Additionally,
7 Even in instances in which an employer raises safety concerns about insignia
display, it cannot establish safety-based special circumstances to support such a ban
unless it can provide concrete evidence that employee safety is foreseeably
threatened by displaying the union insignia (Parks, supra, PERB Decision No. 1026-S,
pp. 5-6), and that it has acted consistently with its stated concern (County of
Sacramento, supra, PERB Decision No. 2393-M, pp. 27-31).

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there is no special circumstance based on any claimed damage to the vehicle or safety
concern; the magnet is removable and leaves no residue. Indeed, the University did not
argue nor present any evidence that the magnets cause damage or safety concerns.
Furthermore, the record supports Teamsters’ assertion that the practice of
placing union bumper magnets on University-owned vehicles is not a rarity. In County
of Sacramento, supra, PERB Decision No. 2393-M, we cited with approval
non-California authority holding that a history of insignia in the workplace without
resulting incidents is relevant to determining whether special circumstances exist, and
that even a six-month history was an “important point” in finding that a correctional
institution’s need to protect inmate and officer safety did not justify its insignia policy.
(Id. at pp. 27-28; accord City of Sacramento, supra, PERB Decision No. 2702-M,
p. 11.) We also found it relevant that municipal fire departments permitted firefighters
to wear union insignia, and we presumed, in the absence of contrary evidence, that
there had been no operational problems when firefighters had worn union insignia in
the past. (City of Sacramento, supra, PERB Decision No. 2702-M, p. 11; see also
County of Sacramento, supra, PERB Decision No. 2393-M, pp. 30-31.) Here, the
record indicates that members of Teamsters skilled trade units affix Teamsters
magnets to the bumpers of University trucks at UC Irvine and UC Merced, as well as
to employer-owned trucks at multiple CSU campuses, all without incident or evidence
of confusion.
Finally, the University’s selective enforcement of its vehicle insignia policy was
discriminatory, reflecting enforcement against union insignia, but not against dealership
license-plate frames and other messages unrelated to University business, such as

13
those related to sports, music, or restaurants. The University did not take any action to
remove Rosales’ other decals that were unrelated to University business, nor did it
enforce the policy against the painter who displayed multiple personal messages for
years. Indeed, the University only applied the policy more broadly when it decided to
crack down on union magnets. An employer rule is unlawful if, on either a facial or as
applied basis, it singles out protected conduct or speech, as compared to non-protected
activities or speech. (County of Tulare (2020) PERB Decision No. 2697-M, pp. 18-19;
County of Orange (2018) PERB Decision No. 2611-M, pp. 3-4; Regents of the
University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 8.) And a facially
neutral, consistently applied rule is unlawful if it responds to protected activity or
otherwise is motivated by discriminatory animus. (County of Lassen (2018) PERB
Decision No. 2612-M, p. 6) Here, the University’s discriminatory enforcement singled
out union speech, and the timing of its broader crackdown shows it was motivated by an
attempt to target protected activity. These circumstances constitute further, independent
reasons why the University cannot demonstrate special circumstances.
Accordingly, the University unlawfully interfered with protected rights.8
ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire
record in this case, the Public Employment Relations Board has found that the
8 The complaint did not allege separate claims for discrimination or unilateral
change without notice and an opportunity to bargain, and no party has asked us to
consider such claims. Nonetheless, the fact of the University’s discrimination is
relevant to the complaint’s interference claim. (See, e.g., County of San Joaquin,
supra, PERB Decision No. 2775-M, pp. 43-45.)

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Regents of the University of California (University) interfered with employee rights
guaranteed by the Higher Education Employer-Employee Relations Act (HEERA) in
violation of Government Code section 3571, subdivision (a) when it prohibited
employees at its San Diego campus from placing bumper magnets bearing union
messages and insignia on University-issued vehicles.
Pursuant to Government Code section 3563, subdivisions (h) and (m), it is
hereby ORDERED that the University, its governing board, and its representatives
shall:
A. CEASE AND DESIST FROM:
1. 	Prohibiting employees from placing magnetic decals bearing union
messages and insignia on their employer-issued vehicles.
2. 	Interfering with employees’ right to form, join and participate in the
activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE
POLICIES OF HEERA:
1. 	Rescind the directive that Eduardo Rosales remove the Teamsters
Local 2010 (Teamsters) bumper magnet from his University-issued vehicle.
2. 	Revise the San Diego campus vehicle usage policy to permit the
display of non-permanent union messages and insignia in compliance with HEERA.
3. 	Within 10 workdays following the date this Decision is no longer
subject to appeal, post at all San Diego campus work locations where notices to
University employees in the skilled trades bargaining unit are customarily posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by

15
an authorized agent of the University, indicating that it will comply with the terms of
this Order. Such posting shall be maintained for a period of 30 consecutive workdays.
The University shall take reasonable steps to ensure that the Notice is not altered,
defaced, or covered with any other material. In addition to physically posting this
Notice, the University shall post it by electronic message, intranet, internet site, and
other electronic means the University uses to communicate with Teamsters-
represented employees at the San Diego campus.9
4. 	Notify OGC of all actions taken to follow this Order by providing written
reports as directed by OGC and concurrently serving such reports on Teamsters.
Members Krantz and Paulson joined in this Decision.
9 Any party may ask PERB’s Office of the General Counsel (OGC) to alter or
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC
shall solicit input from all parties and, if warranted, provide amended instructions to
ensure adequate notice.

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. SF-CE-1198-H, Teamsters Local
2010 v. Regents of the University of California, in which all parties had the right to
participate, the Public Employment Relations Board has found that the Regents of the
University of California violated the Higher Education Employer-Employee Relations
Act (HEERA), Government Code section 3560 et seq., by prohibiting employees at its
San Diego campus from placing bumper magnets bearing union messages and
insignia on University-issued vehicles.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Prohibiting employees from placing magnetic decals bearing union
messages and insignia on their employer-issued vehicles.
2. 	Interfering with employees’ right to form, join and participate in the
activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF HEERA:
1. 	Rescind the directive that Eduardo Rosales remove the union
bumper magnet from his University-issued vehicle.
2. 	Revise the San Diego campus vehicle usage policy to permit the
display of non-permanent union messages and insignia in compliance with HEERA.
Dated: _____________________ 	Regents of the University of California
By: __________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.