Turlock Joint Elementary School District * * * VACATED by Turlock Joint Elementary School District (2004) PERB Decision No. 1490a-E (PERB 1490E)

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VACATED by Turlock Joint Elementary School District
(2004) PERB Decision No. 1490a-E

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TURLOCK TEACHERS ASSOCIATION,
Charging Party, Case No. SA-CE-2003-E

v. PERB Decision No. 1490

TURLOCK JOINT ELEMENTARY SCHOOL July 17, 2002

DISTRICT,

Respondent.

Appearances: California Teachers Association by Priscilla Winslow, Attorney, for Turlock
Teachers Association; Currier & Hudson by Richard J. Currier, Attorney, for Turlock Joint
Elementary School District.
Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by both the Turlock Teachers Association (TTA) and the Turlock
Joint Elementary School District (District) from an administrative law judge’s (ALJ) proposed
decision dismissing the TTA’s unfair practice charge. The charge alleged that the District
violated the Educational Employment Relations Act (EERA) ' by prohibiting teachers
represented by the TTA from wearing a button produced by the TTA in support of its

bargaining demands and which referenced the contention that the District’s teachers were no

longer number one in compensation during instructional times or in other instructional settings.

' EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

The Board disagrees with the ALJ's finding that the wearing of a button in support of
bargaining which advertises that the District's teachers were no longer number one in
compensation is "political activity" prohibited by the Education Code. On that basis, the
Board reverses the ALJ's proposed decision and finds that the District interfered with
employee rights guaranteed by BERA in violation of Section 3543.5(a) and (b)2 by prohibiting
the wearing of the button at issue.
FINDINGS OFF ACT
In the spring of 2000, the parties were engaged in negotiations on a successor
agreement to one that had expired in June 1999. According to TTA Organizing Chairperson,
Charles Warren Conrad (Conrad), negotiations were "extremely slow." The parties had met at
least 20 times. 	Sometime in May 2000, TTA set out to increase the visibiiity of its bargaining
demands and the solidarity and support of its membership. As part of this effort, TTA
developed a program to have teachers wear lapel buttons. Most teachers in the bargaining unit
represented by TTA wore the buttons. They did so to show and build their solidarity with one
2 BERA section 3543.5 states, in pertinent part:
It shall be unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise ofrights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
2

another, communicate their support for TTA, and express their concerns regarding certain
bargaining issues, as detaiied beiow. TTA's activities also included a letter writing campaign
to the superintendent and the board of trustees, letters to the newspapers, talks with parents,
distribution of informational flyers, rallies, attendance at board meetings, contacts with radio
stations and "work to rule."
The button, a white, round badge about 2-1/4 inches in diameter, bore a burnt orange
circle around the perimeter, with "Turlock Schools" printed in the circle at the top. There was
a burnt orange slash in the circle crossing the figure "# 1" inside the circle. Also in the circle
was handwritten "TTA".3 The circle also had the numbers 9, 11 and 14 around the bottom.
The face of the button was intended to convey TTA's contention that the District had slipped
from number one in teacher salaries in Stanislaus County to number 14, a subject at issue in
bargaining. TTA witnesses testified consistently that the purpose of wearing the buttons was
to foster communication between members, build solidarity, and express the collective opinion
of unit members to the District about TTA's bargaining demands.
A teacher from each of eight schools testified that he or she wore the button in the
classroom. The teachers said they heard of no complaints from parents. None considered the
buttons disruptive. The purpose of wearing the buttons continuously was to build solidarity,
let the administration know the teachers were unified, publicize their demands, and avoid the
inconvenience and worry of taking the buttons off and putting them back on. Two teachers
testified that there was no message intended for the students.
3 At some point, new buttons were acquired and distributed to teachers that were the
same as the one described above, except that they had "CTA/NEA" inside the circle instead of
"TTA."
3

On June 1, 2000, Assistant Superintendent Bob Stammerjohan (Stammerjohan) wrote
to Donna Crist, TTA president. He stated:
It has been brought to my attention that teachers are engaging in
political activity during times when they are directly engaging in
instructional activities with students. Although teachers certainly
have the right of free speech, there are restrictions which are
recognized by the courts. For example, teachers must refrain
from engaging in political advocacy with students during
instructional activities. Teachers must not wear political buttons,
including buttons covering union political activities, during
instructional times or during other instructional settings. They
also must not display political posters in their classrooms during
instructional times or during other instructional settings. The
recently published decision of California Teachers Association v.
Governing Board of San Diego Unified School District (1996) 45
Cal. App. 4 th 1383, clearly supports these limited restrictions.
As public employees, we all enjoy freedom of speech, but we
must not engage in political advocacy when students are present
during instructional activities. Students are present to learn the
adopted curriculum, and not be subjected to unrelated political
activity.
Your prompt cooperation in informing your members of these
restrictions would be appreciated. If you desire any additional
clarification, please do not hesitate to check with me at any time.
(Underlining added.)
During this general time period, Conrad was told by his vice-principal to remove the button
while he was teaching.
The parties reached settlement of a collective bargaining agreement on June 21, 2000.
Separate from the events underlying the charge herein, in the fall of 2000, teachers
were provided with and wore other buttons that said "No on Prop 38," a school voucher
initiative on the November 2000 ballot. The board of trustees had adopted a position against
the initiative. Stammerjohan stated, in testimony credited by the ALJ, that he saw Conrad
4

wearing this button at an administration-sponsored social just before school started, and that he
told Conrad the button was inappropriate for the classroom. 4
DISCUSSION
Under EERA section 3543, employees have 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."
Under EERA section 3543.l(b) employee organizations have:
... the right of access at reasonable times to areas in
which employees work, the right to use institutional
bulletin boards, mailboxes, and other means of
communication, subject to reasonable regulation, and the
right to use institutional facilities at reasonable times for
the purpose of meetings concerned with the exercise of
the rights guaranteed by this chapter.
This case calls upon the Board to analyze employees' rights under EERA to participate
in the activities of their employee organizations for the purpose of representation on a matter of
employer-employee relations and the statutory access right in light of the restrictions on
political activities contained in the Education Code.
Section 7050 of the Education Code provides as follows:
The Legislature finds that political activities of school employees
are of significant statewide concern. The provisions of this
article shall supersede all provisions on this subject in any city,
county, or city and county charter as well as in the general law of
this state.
Education Code section 7051 defines agencies to which the chapter applies and
includes school districts.
4 The Prop. 38 button was not mentioned in the unfair practice charge at issue here and
the District's conduct relative to that button is not the basis of any unfair practice charge
presented for consideration before the Board in this matter.
5

Education Code section 7052 provides:
Except as otherwise provided in this article, or as necessary to
meet requirements of federal law as it pertains to a particular
employee or employees, no restriction shall be placed on the
political activities of any officer or employee of a local agency.
Education Code section 7055 provides that the governing body of each school district
may establish rules and regulations regarding: 	(a) officers and employees engaging in political
activity during working hours, and (b) political activities on the premises of the district.
TTA argued before the ALJ that wearing buttons or insignia in the workplace is
protected activity, citing State of California (Department of Parks and Recreation) (1993)
PERB Decision No. 1026-S (Parks). In that case, arising under the Dills Act,5 the employer
had banned the wearing of all union buttons. PERB noted that the National Labor Relations
Board had prohibited the wearing of union insignia when safety, discipline or effect on the
employer has been shown. As no showing was made by the state regarding issues of safety,
discipline or effect on the employer, the Board held in Parks that the ban was in violation of
the Dills Act. TTA argued that the case should be analyzed under the Carlsbad Unified School
District (1979) PERB Decision No. 89 (Carlsbad) test for interference with protected activity,
as used in Parks. 6
5 The Dills Act is codified at Government Code section 3512, et seq.
6 At the hearing, in its opening statement to the ALJ, TTA challenged the District to
present evidence of special circumstances justifying a ban on the buttons: "PERB has held in
[Parks] that the burden lies with the employer to demonstrate such special circumstances that
would justify a ban on the wearing of union buttons in the work place. ,r In this case, the
employer will not be able to carry such a burden." The District was therefore on notice of the
Parks decision and the relevance of evidence of special circumstances, yet failed to proffer
such evidence.
6

The District argued that Parks did not control and that the ban was justified under two
later cases, Caiifomia Teachers Assn.
v.
Governing Board (1996) 45 Cal.App.4th 1383 [53
Cal.Rptr.2d 474] (San Diego) and Wilmar Union Elementary School District (2000) PERB
Decision No. 1371 (Wilmar). The District contended that Parks, a Dills Act case involving
union insignia designed to identify the new exclusive representative and to assist in identifying
union stewards on the job sites, is inapplicable to an EERA case involving teachers wearing
buttons in front
of
students in the classroom.
The ALJ noted that, in San Diego, the court ruled under Education Code section 7055
that a school district may regulate employee political activity such as wearing political buttons
during working hours without interfering with state or federal constitutional rights. In San
Diego the court upheld the district's ban against teachers wearing political buttons in an
instructional setting in order to disassociate itself from matters
of
political controversy.
In Wilmar the Board dismissed an unfair practice charge in which a district ordered a
teacher and union representative to remove her pickup truck from the school parking lot
because the truck displayed a large sign advocating named candidates for the board
of
trustees.
Visible to students, the sign indicated that these candidates were endorsed by the union. 	In that
case, the district also adopted a policy indicating that staff could wear campaign buttons while
performing non-instructional duties, provided that the buttons were not visible to children.
TTA contended that San Diego and Wilmar were both inapposite because, unlike in the
instant case, the written expression in those cases related to votes in electoral campaigns,
which falls within the legitimate scope of the authority Section 7055 grants to employers to
regulate expression.
7

In the instant case, the ALJ ruled that Education Code section 7055 is not limited to
activity related to candidates for office or positions on initiatives, but also involves "political
activities" during working hours and "political activities" on school premises. He noted that
"Webster's Third International Dictionary" defines "political" as
"of
or relating to government,
a government, or the conduct
of
government affairs." Relying on that definition, the ALJ
reasoned that, since the District board
of
trustees is a government entity, wearing buttons to
affect the District's positions at the bargaining table was an activity
"of
or relating to" a
government. Accordingly, he reasoned, wearing the buttons constituted "political activity"
within the meaning
of
Education Code section 7055. Consistent with this definition
of
political activity, he found the San Diego case dispositive.
The ALJ also noted that, while there is no single consensus for the Board's holding in
Wilmar, each
of
the Board members cited San Diego. He concluded that, under that precedent,
the District was empowered to restrict the teachers from wearing the buttons in the classroom. 7
Both parties filed exceptions to the ALJ' s proposed decision.
TTA excepts to various conclusions reached
by
the ALJ. Inter alia, TTA claims that:
(1) the ALJ erroneously interpreted the term "political" as used in the Education Code, leading
him to wrongly conclude that the wearing
of
the buttons was "political"; (2) the ALJ wrongly
applied San Diego to this case; (3) the ALJ mischaracterized Wilmar; and (4) the ALJ erred by
failing to make a finding that the District tolerated the wearing
of
the "No on Proposition 38"
buttons, whereas it banned TT A's bargaining-related buttons.
7 The ALJ also rejected TTA's argument that the District, by failing to ban the wearing
of the Proposition 3 8 buttons, belied an operational necessity defense. The ALJ found
insufficient evidence that the District allowed teachers to wear "No on Proposition 38" buttons.
In fact, he found evidence to the contrary, in that Stammerjohn admonished Conrad at a pre-
school social that the "No on Proposition 38" button was not to be worn in the classroom.
8

The District also filed exceptions, stating that it agrees with the ALJ's decision,
but
excepts to the ALJ's statement that "resolution
of
what is meant
by
the word 'political' is
critical to this case." The District concedes the term is "relevant," but offers additional
grounds for dismissal
of
the complaint. Citing one member's opinion in Wilmar, it asserts that
the wearing
of
union buttons in the classroom when only students are present has "no
relationship" to protected activity under the EERA. Additionally, the District urges the Board
to make an affirmative finding that dismissal is justified because TTA failed to meet its burden
of
proof
of
demonstrating that the employer's conduct tends to or does result in harm to
protected employee rights (citing Carlsbad).
The Board finds that wearing the buttons at issue in this case was protected activity
under EERA and that the Education Code did not grant the District the authority to override
employees' statutorily protected right.
The wearing
of
union buttons is a protected right under EERA, absent special
circumstances. This position is clearly supported
by
Board case law and private sector
precedent. 8 The Board held in Parks that:
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.
(Id. at p. 8.)
There is no evidence in the record in the instant case to indicate that any "special
circumstances," such as safety, discipline, effect on the employer, or any "disruption," were
8 (See Parks; Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 [89 L.Ed. 1372];
Pay'N Save Corp. v. NLRB (9 th Cir. 1981) 641 F.2d 697 [106 LRRM 3040]; NLRB v. Harrah's
Club (9 th Cir. 1964) 337 F.2d 177 [57 LRRM 2198].)
9

caused by the union buttons.9 Therefore, the protected right to engage in such protected
activity under BERA remains intact.
Since there is no evidence
of
these "special circumstances" under BERA, we tum our
attention to the Education Code.
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.
The Board disagrees with the ALJ's conclusion that the wearing
of
these particular
union buttons was "political" activity within the meaning
of
Education Code section 7055 and
disagrees that San Diego controls the instant case.
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.)
In the instant case, the ALJ reasoned that because the District board
of
trustees is a
governmental entity, the wearing of union buttons supporting a bargaining position is an
In its response to TT A's appeal, the District does not argue any of these factors
(safety, discipline or disruption).

attempt to influence the board
of
trustees as a governmental entity and is therefore political
activity. At page 10
of
the proposed decision, the ALJ concluded:
Clearly, the teacher's 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.
However, the ALJ also noted that the purpose
of
wearing the button was to cause the
governing board
of
trustees to change its position at the bargaining table. This purpose, within
the context
of
collective bargaining, is critical to the determination
of
this case.
When examined in light
of
adjacent statutory provisions and the purposes
of
BERA, the
scope
of
the definition
of
"political activties" 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 BERA and their activity as candidates for elected office or as incumbents
seeking preservation
of
their offices or reelection.
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.].) The scope
of
the definition
is
also
11

illuminated in 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. 10
Wilmar is also distinguishable from this case. 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 TT A'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 BERA.
A central purpose of BERA, 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. BERA
section 3540 expressly states, in pertinent part:
10 The definition of "political activities" adopted by the ALJ was overly broad and was
inconsistent with the statutory context within which the provision appears, with the purposes of
BERA, and with the nature of public employee collective bargaining. Indeed, 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," the definition of "political" derived by the ALJ from the Webster's
Dictionary. Thus, under the ALJ's analysis, 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 constitutional speech protections in the
workplace that private employees do not possess. (See, e.g., Kirchmann v. Lake Elsinore
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].)
12

It
is the purpose
of
this chapter to promote the improvement
of
personnel management and employer-employee relations within
the pubiic 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.
In furtherance
of
these purposes, 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
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 its term. As the Education
Code does not mandate an expansive statutory definition
of
political activity, we will
not
expand the definition through our case law in any way that would disrupt these important
purposes
of
EERA.
Here, any influence cast by the buttons on the position
of
the members
of
the board
of
trustees would impact and assist them in their role as an employer during bargaining, rather
than as candidates for election to such a board (which is not alleged).
In this case, the teachers would have a right to wear the union buttons unless "special
circumstances" were established under EERA or they were found to violate the Education
Code. However, the District did not argue or place any evidence in the record of any "special
circumstances" under EERA. The Education Code bars only the special circumstance
of
13

ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the Turlock Joint Unified School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a) and (b).
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Prohibiting employees from wearing buttons expressing an opinion
regarding a subject of collective bargaining between the employees' exclusive representative
and the District as set forth in the decision of the Public Employment Relations Board (PERB)
in this case;
2. 	Ordering employees to remove such buttons;
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies of the
notice attached hereto as an Appendix.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the Sacramento Regional Director of PERB in accordance with the director's
instructions. Continue to report in writing to the regional director thereafter as directed. 	All
reports to the regional director shall be concurrently served on the Turlock Teachers
Association.
14

It is further Ordered that the proposed decision of the administrative law judge in Case
No. SA-CE-2003-E is hereby REVERSED.
Members Baker and Whitehead joined in this Decision.
15

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. SA-CE-2003-E, Turlock Teachers
Association v. Turlock Joint Elementary School District, in which all parties had the right
to participate, it has been found that the Turlock Joint Elementary School District (District)
violated the Educational Employment Relations Act (EERA), Government Code section
3543.S(a) and (b ), by prohibiting teachers represented by the Turlock Teachers Association
(TTA) from wearing buttons expressing an opinion regarding a subject of collective bargaining
between the employees' exclusive representative and the District as set forth in the decision of
the Public Employment Relations Board (PERB or Board) in this case.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND Ub:Sl:ST FKUM:
1. 	Prohibiting employees from wearing buttons expressing an opinion
regarding a subject of collective bargaining between the employees' exclusive representative
and the District as set forth in the decision of the Board in this case;
2. 	Ordering employees to remove such buttons;
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies of the
notice attached hereto as an Appendix.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the Sacramento Regional Director of PERB in accordance with the director's

instructions. 	Continue to report in writing to the regional director thereafter as directed. All
reports to the regional director shall be concurrently served on the Turlock Teachers
Association.
Dated: 	TURLOCK JOINT ELEMENTARY
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.
2