County of Sacramento (PERB 2393M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO AREA FIRE FIGHTERS, IAFF
LOCAL 522,
Charging Party,
v.
COUNTY OF SACRAMENTO,
Respondent.
Case No. SA-CE-787-M
PERB Decision No. 2393-M
October 16, 2014
Appearances: Mastagni, Holstedt, Amick, Miller & Johnsen by Jeffrey R. A. Edwards,
Attorney, for Sacramento Area Firefighters, IAFF Local 522; Timothy D. Weinland, Deputy
County Counsel, for County of Sacramento.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the Sacramento Area Firefighters, IAFF Local 522
(Local 522) to a proposed decision by a PERB administrative law judge (ALJ). The
complaint and underlying unfair practice charge allege that on October 27, 2011, the County
of Sacramento (County) committed an unfair practice when it implemented a blanket
"No Union Logo" policy1 prohibiting bargaining unit employees from wearing clothing with
union insignia while on duty. By this conduct, as alleged in the complaint, the County
1 The Office of the General Counsel described the policy at issue in this case as the
"No Union Logo" policy in the unfair practice complaint. The policy is referred to as such
in the proposed decision. For ease of reference and continuity, we retain the same
nomenclature in this decision.

interfered with employee rights guaranteed by the Meyers-Milias Brown Act (MMBA)2 in
violation
of
sections 35063 and 3506.5, subdivision (a);4 and denied Local 522 its right to
represent employees in violation
of
sections 3503 5 and 3506.5, subdivision (b).6
The proposed decision concludes that bargaining unit employees do not enjoy a
guaranteed right to wear t-shirts and caps required to be worn as part
of
a public safety
firefighter uniform that bear the union logo. Finding that the County did not commit an unfair
practice when it unilaterally implemented the "No Union Logo" policy, the ALJ dismissed the
unfair practice complaint and underlying charge.
2 The MMBA is codified at Government Code section 3500 et seq. Undesignated
section references are to the Government Code. Section 3509, subdivision (b), provides: "A
complaint alleging any violation
of
this chapter or
of
any rules and regulations adopted by a
public agency pursuant to Section 3507 or 3507.5 shall be processed as an unfair practice
charge by the board." 	·
3 Section 3506 provides: "Public agencies and employee organizations shall not
interfere with, intimidate, restrain, coerce or discriminate against public employees because
of
their exercise
of
their rights under Section 3502." Section 3502 provides: "Except as
otherwise provided by the Legislature, public employees shall 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."
4 Section 3506.5, subdivision (a), provides that a public agency shall not: "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
of
rights guaranteed by this chapter." PERB Regulation 32603, subdivision (a),
makes it an unfair practice for an employer to interfere with guaranteed employee rights.
(PERB Regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.)
5 Section 3503 provides: "Recognized employee organizations shall have the right to
represent their members in their employment relations with public agencies
....
"
6 Section 3506.5, subdivision (b), provides that a public agency shall not: "Deny
to employee organizations the rights guaranteed to them by this chapter." PERB
Regulation 32603, subdivision (b), makes it an unfair practice for an employer to deny
employee organization guaranteed rights.
2

The Board has reviewed the record in its entirety in consideration
of
the issues raised
by Local
522's
statement
of
exceptions and the County's response thereto. Based on our
review, the Board hereby reverses the proposed decision and concludes that the County
interfered with guaranteed employees' rights by implementing a blanket "No
U11ion
Logo"
policy and, by the same conduct, concurrently denied Local 522 its guaranteed representational
rights.
PROCEDURAL HISTORY
On April 20, 2012, Local 522 filed the unfair practice charge. On May 7, 2012, the
County filed a position statement responding to the charge. PERB
's
Office
of
the General
Counsel issued the unfair practice complaint on July 26, 2013. On August 1, 2013, the County
filed its answer. An informal settlement conference was conducted on September 6, 2013, and
a formal hearing was held on November 25, 2013. 	On January 30, 2014, the case was
submitted for decision after receipt
of
post~hearing briefs. The proposed decision was issued
on March 5, 2014.
Local 522 timely filed a statement
of
exceptions to the proposed decision on March 25,
2014. The County timely filed a response on April 9, 2014. On April 22, 2014, the Appeals
Office notified the parties that the filings were complete.
FACTUAL SUMMARY7
Within the County, there is the Aircraft Rescue & Firefighting Division (ARFF).
Local 522 is the exclusive representative
of
the ARFF bargaining unit, Unit 30. It is comprised
7 No exceptions were taken to the findings of fact in the proposed decision. The
Factual Summary in this decision is taken from the ALJ's findings
of
fact, and supplemented
from the record evidence where necessary to provide further factual context for this decision.
3

of
32 Fire Fighters and Fire Captains8 (collectively, firefighters or ARFF firefighters) who
serve the following airports within the Sacramento County Airport System (SCAS):
Sacramento Metropolitan International Airport (Airport), Mather Field Airport (Mather) and
City Executive Airport (Executive). Fire stations are located at the Airport and Mather, but not
at Executive. ARFF provides specialized emergency response and structural fire protection
services to businesses, employees and travelers at these airport facilities.
Lance Mccasland (Mccasland) began employment with the County in 1994, serving as
Fire Operations Supervisor, Assistant Chief
of
Fire Rescue and Fire Chief. Since November
2010, he has held the position
of
Airport Deputy Director
of
Operations and Public Safety.
Jeff Metzinger (Metzinger) has held the position
of
ARFF Fire Chief since January 2012. Prior
to that, he worked for 28 years in the Sacramento Metropolitan Fire Department (Metro Fire
Department) until his retirement from that fire department in 2011. While at the Metro Fire
Department, he held positions as Fire Fighter, Fire Captain, Battalion Chief, Training Chief
and Assistant Chief.
Local 522 has represented the ARFF firefighters since 2007. Steve Loza (Loza) was
hired by the County to fill a Fire Fighter position in 2003 and was promoted to a Fire Captain
position in 2009. He is primarily responsible for Engine 98, located at the Airport fire station.
He served as the Local 522 Unit Representative from 2007 until April 2012, when he became
the District Director. Robert Repar (Repar) was hired by the County to fill a Fire Fighter
position in 1994 and promoted to fill a Fire Captain position in 2010. He has served as the
Local 522 Unit Representative since January 2013.
8 Fire Captains are first-line supervisors. They are responsible for a particular
apparatus and engine crew, daily duties and emergencies.
4

Two
municipal fire departments with bargaining units long represented by Local 522
also respond to calls for firefighting assistance at the Airport. 	Sacramento City Fire
Department (City Fire Department) has a mutual aid agreement with the Airport. Michael
Feyh (Feyh) was hired by the City Fire Department to fill a Fire Fighter position in 1994 and
was promoted to a Fire Captain position
in
June 2013.
The
other municipal fire department serving the Airport is the Metro Fire Department.
Local 522 President Brian
Rice(Rice)
was first employed
in
a Fire Fighter position with the
American River Fire Protection District. He then worked for the Metro Fire Department for
27 years before retiring.
He
served as a Fire Fighter, Fire Engineer and Fire Captain before
promoting out
of
the bargaining unit to Battalion
Chief in 2008 and then to Assistant Chief
and Deputy
Chief
of
Operations in 2010. Rice had previously served as the Local 522
president from 2002 to 2008. And, before that, he was on the Local
522
Executive Board from
1990-2002 and, when he was with the American River Fire Protection District, he was the
Local 522 Unit Representative.
Contract Language
The County and Local 522 entered into a memorandum
of
understanding (Agreement)
effective 2006 through 2011, which was extended by Addendum #3 through June 30, 2013.
Article XII establishes a uniform allowance for Fire Fighters and Fire Captains covering
clothing, boots and jackets. Effective June 24, 2007, the reimbursement for uniform allowance
was discontinued. Instead, Fire Fighters receive a uniform allowance payment
of
$28.85
biweekly included in their regular paycheck subject to taxation; Fire Captains receive a
uniform allowance payment
of
$30.77 biweekly, payable twice a year in January and July.9
9 Loza testified that employees receive a $70 allowance per pay period.
5

The County bears the initial cost
of
additional required uniform clothing for both Fire Fighters
and Fire Captains.
Uniform Policy
County Standard Operating Procedure (SOP) 100-01 contains the operative rules and
regulations regarding uniform specifications and wear for ARFF personnel. The Class A
uniform is for dress or formal wear. It is required for all Chief Of:ficers10
but optional for Fire
Fighters and Fire Captains. The Class A uniform is to be worn when representing ARFF at
public events, or when attending funerals, parades and other social functions as representatives
ofSCAS.
The Class B uniform is for daily wear, and must be worn when reporting for duty and at
roll call.
It
consists
of
the following items
of
clothing:
• 	Shirt
11
• 	Pants
• 	Jacket
• 	T-Shirt
•	
Cap12
• 	Station Safety Boots
• 	Belt
• 	Buckle
• 	Tie
The Class B uniform
13
t-shirt has the SCAS logo on the front left breast and identifies
SCAS and ARFF on the back.
It
is worn under the long-sleeved, button-down Class B uniform
10
Chief Officers are those at the level
of
Battalion Chief and above.
11
The Class B uniform shirt costs $95.
12
The Class B uniform cap costs $35.
13
The Class B uniform job shirt and Class B uniform sweatshirt are optional.
6

shirt. The Class B uniform t-shirt may be worn without the Class B uniform shirt in the
station, during daily in-house training sessions and during outside training drills when
performing physical activity. Although it is unacceptable under the Class B Uniform "Wearing
Policy" in SOP 100-01 to wear the Class B uniform t-shirt without the Class B uniform shirt on
emergency calls or in public during non-emergency situations, i.e., station tours, fire
inspections, public education functions, non-physical training and in business and retail
establishments, Metzinger acknowledged that the Class B uniform t-shirt is worn without the
Class B uniform shirt in the summer months when it is hot and during duty hours in the fire
station.
14
He also acknowledged that when responding to an emergency at the Airport,
firefighters wear what they have on.
15
Physical fitness apparel consists
of
at-shirt or sweatshirt and shorts
16
or sweat pants.
Physical fitness apparel is worn during exercise and cool-down. The minimum required
sleepwear consists
of
at-shirt and an outer garment bottom worn over and covering an
undergarment bottom.
History
of
Representation
In 2003, Stationary Engineers Local 39, International Union
of
Operating Engineers,
AFL-CIO (Local 39) represented the ARFF firefighters in a bargaining unit with many other
occupation types, including custodial, maintenance and sanitation. Loza testified that ARFF
14
Metzinger testified: 	"A lot
of
work is kind
of
like blue collar work. 	There's station
maintenance, equipment and stuff, and a T-shirt is probably the appropriate shirt for most
of
that work."
15
Metzinger testified:	
"If
they're out on the drill ground training, particularly, and they
need a quick response, they'll wear what they're wearing. 	They'll wear T-shirts."
16
Shorts are referred to in the formal hearing transcript as sweat shorts, workout shorts
and gym shorts.
7

firefighters petitioned to decertify out
of
Local 39
17
and to recertify or affiliate with Local 522
because Local 522 is a firefighters-only union. Local 39 objected and invoked Article XX
of
the AFL-CIO constitution to impose a two-year bar to decertification.
The ARFF firefighters ultimately were successful in attaining their own unit and
decertified Local 39. They formed their own non-AFL-CIO organization, Sacramento County
Aircraft Rescue Firefighters Association (SCARFA), presumably after the two-year bar
expired.
The
County recognized SCARFA in 2006, the same year in which the County labor
contract with Local 39 expired. In November 2006, SCARF A and the County reached a
tentative agreement (TA) on a five-year contract that provided equity increases. SCARFA
agreed with the County's request to wait until January 15, 2007, to present the TA to the
County Board
of
Supervisors because
of
the holidays and unavailability
of
County personnel.
Having learned that the County's local rules allowed a unit modification petition to be
filed during a window period from January to February 2007, ARFF firefighters filed a petition
seeking to be represented by Local 522. Subsequent to that, the County filed an unfair practice
charge with PERB. After an informal settlement conference, the County withdrew the charge
and the County Board
of
Supervisors approved the TA, which formed the current Agreement.
Sometime in 2007, Local 522 became the exclusive representative and a party to the
Agreement.
Union Logo on Uniform
Local 522 provides t-shirts, sweatshirts, shorts, sweatpants, caps and other gear bearing
the union logo. 	On the Local 522 t-shirt, the union logo is on the left front breast and it
17
We understand that, by this petition, the ARFF firefighters intended to achieve a
severance of the firefighter classifications from the larger bargaining unit.
8

contains the name, Sacramento Area Firefighters Local 522, within an emblem consisting
of
a
fire helmet and crossed axes.
Local 522 provides gear as a convenience to its members. 	Because Local 522 provides
the gear at cost, members benefit from the cost savings. Local 522 also appears to take pride
in the fact that the gear is close to I 00 percent made in the United States
of
America.
Local 522 has been the exclusive representative for the City Fire Department
firefighters during
Feyh's
19 years
of
service. During that time, the City Fire Department has
approved multiple logos, including the Local 522 logo, on t-shirts, sweatshirts, sweatpants,
shorts and caps. The City Fire Department's uniform policy specifically permits the wearing
of
apparel bearing the Local 522 logo as part
of
its Class B uniform. Feyh testified that, to his
knowledge, the wearing
of
uniform apparel bearing the union insignia by firefighters in the
City Fire Department has caused no operational problems, no confusion in response to
emergencies, no complaints from the public, no morale or discipline problems and no
confusion in the chain
of
command. McCasland confirmed that City Fire Department
firefighters respond to emergencies at the Airport wearing Class B uniform t-shirts bearing the
Local 522 logo.
The Metro Fire Department's uniform policy permits the wearing
of
apparel bearing the
Local 522 logo as part
of
its Class B uniform. Rice testified that during his time in
management he influenced operational policy in the areas
of
training, labor relations and
budget.
18
Regarding the Metro Fire Department's uniform policy, Rice testified as follows:
Q 	In your experience in Operations, is there any
operational problem with firefighters or captains wearing this
T-shirt as part
of
their class B uniform?
18
Rice testified further that the Local 522 logo was designed in 1991 and approved by
the American River Fire Protection District for use on its Class B uniform t-shirt and cap.
9

A 	In the course
of
my entire career and then finishing
my career as a chief officer, I never had a problem with members
of
the department wearing this uniform shirt.
Q 	Did it create any confusion in responding to
emergency calls?
A 	No.
Q 	Did it create confusion with the public?
A 	No.
Q 	Can you think
of
any reason why it would impair
the operations
of
a fire department?
A 	No.
Metzinger confirmed that the Metro Fire Department Class B uniform t-shirt and cap
bear the Local 522 logo and that Metro Fire Department personnel in the positions
of
Fire
Fighter and Fire Captain wear caps bearing the Local 522 logo as part
of
the Class B uniform.
On the Metro and City Fire Departments' Class B uniform t-shirt, the union logo is on the left
front breast, as described above, and the jurisdiction is on the back.
After Local 522 began representing the ARFF firefighters in 2007, Loza and
McCasland agreed that it might not be prudent to wear apparel bearing the Local 522 logo
because it could offend or be perceived as antagonistic to management. According to Loza, as
time wore on, t-shirts, caps and sweatshirts bearing the Local 522 logo started to be worn in
public and at the fire station. The practice was never approved or disapproved, and it caused
no impact other than on occasion, the wearer was told to remove the clothing in question. As
Loza testified:

From time to time, Union logos were worn, in the public's eye
and in the firehouse, and it was never an approved policy, but it
was never a disapproved policy. It was more
of
a
-There
was
times you could do it and there would be no impact, and there
was times that you could do it and then there would be impact,
i.e., someone saying, "You shouldn't be wearing that
or
you need
to take that off, you need to change."
The City and Metro Fire Department firefighters wear pink t-shirts bearing the union
logo as part
of
their Class B uniform during the month
of
October to support breast cancer
awareness. 	Sometime before October 2011, the ARFF firefighters obtained management
approval to do the same. This has been the practice among ARFF firefighters for the last three
years.
The "No Union Logo" Policy
On October 20, 2011, Battalion Chief
19
John Conneally (Conneally) sent a message by
e-mail to Loza and two other Fire Captains, copying six other individuals, entitled "522 Hats."
The message states in pertinent part:
Gentlemen
.........
at no time is a Local 522 hat to be worn while
on duty.
On October 27, 2011, Conneally re-sent the October 20, 2011, message by e-mail to the
same individuals on the "to" and "cc" lines, along with a new message, which states in
pertinent part:
Reminder#2
Please adhere to the uniform policy. The wearing
of
hats, T-
shirts and sweatshirts with the union logo while on duty is not
approved.
19
The Battalion Chief is a first-line manager.
11

Reference Rules and Regulations SOP 100-05[
201
Uniform
Specification and Wearing.
■	
T shirts see section E.
■	
Cap see section H.
Captains please ensure your staff comply. There is no need to
go there with me on what occurs on other shifts
.......
I have been
personally directed to ensure that this policy is strictly enforced at
all times.
(Italics, bold, underline and additional periods in the original.) Conneally forwarded the
message string to Repar one minute after it was sent to the original recipients. The message
sent to Repar contained no italicized, bold or underlined text. This set
of
e-mail messages
comprises the "No Union Logo" policy referred to herein.
The above messages were e-mailed following a conversation about union logos
between Loza and Conneally, which was precipitated by a firefighter wearing a cap bearing the
Local 522 logo at an administrative meeting or ceremony. Loza was told to reprimand any
firefighter seen wearing apparel with union insignia, instruct that such apparel is not to be
worn while on duty and direct that the apparel in question be removed.
One
of
the first issues Metzinger faced after he became the Fire Chief in early 2012 was
the Local 522 logo issue. He and McCasland discussed "altering this document [the SOP] and
refining it and correcting it and bringing it up to date." Their goal was to clarify the language
20 As the County's post-hearing brief concedes, SOP 100-05 was not the operative
policy during the relevant time period. SOP 100-01, discussed ante, was the operative policy.
McCasland signed both policies, but SOP 100-01 was created by Conneally on June 3, 2010,
whereas SOP 100-05 was created by Conneally on October 19, 2009. One of the main
differences between the two is that the current policy does not require that logos on t-shirts,
optional job shirts and sweatshirts, and caps comply with the SCAS Brand Guidelines, as the
prior policy did. And, unlike the prior policy, the current policy does not require that the
physical fitness apparel contain the SCAS logo. (Ordinarily it might be presumed that a policy
numbered 100-05 would be more recent than a policy numbered 100-01. That does not appear
to be the case.) 
12

including approving the use
of
the Local 522 logo on sweatpants and shorts. Conneally was
directed to revise the SOP and enlisted Loza to work with him on this project. The proposed
changes included changing the color
of
the caps from blue to black to conform to area
standards, removing the prohibition on the rigid toe cap and removing the reference to SCAS
Brand Guidelines. The process
of
revising and updating the SOP was brought to a standstill
pending resolution
of
this case.
The ARFF bargaining unit employees do not seek to wear the Local 522 logo on the
Class A uniform or on most
of
the Class B uniform. They seek to wear the union logo on the
Class B uniform t-shirt, cap and sweatshirt as well as on the sweatpants and shorts. These are
items that are worn at the fire station, mainly outside
of
public view. The public may see these
items on occasion, i.e., on emergency calls.
21
According to Loza, when ARFF firefighters are
in public, they are wearing the Class B uniform shirt over the Class B uniform t-shirt
90 percent
of
the time;
if
there were a union logo on the t-shirt, it would not be seen.
The ARFF firefighters want to wear apparel bearing the Local 522 logo for the
following reasons, as testified to by Loza:
Well, first and foremost, I mean, we've fought long and hard to
become members
of
this organization, and we're proud
of
it, and
we want to show our solidarity and our affiliation to it. That's
the main reason. Secondly, it's the industry norm. I mean, fire
departments all across the nation, all up and down California,
even in our region, they all are able to wear their Union-affiliated
logos on their class-B duty shirts.
21
Firefighters work 24-hour shifts from 8:00 a.m. until 8:00 a.m. the next day. The
normal duty day begins at 8:00 a.m. with roll call. The normal duty day ends at 5:00 p.m.
After 5:00 p.m., they are required to remain at the fire station and be ready to respond to
emergencies on a standby basis, but are otherwise allowed to do as they please, i.e., work out
in their physical fitness apparel or, presumably, change into their sleepwear at the appropriate
time. 
13

And there's a cost savings to them. 	Quite frankly, the Union
produces these shirts as a benefit to us, and sweatpants and sweat
shorts and hats that we can go down and buy at no profit, at cost,
market. Right now, when we have to purchase T-shirts and hats,
they're expensive. The County hats we purchase, they're
35 dollars. At the Union hall, they're ten. I mean, that's an added
benefit. But, you know, it all boils down to, like, we want to
show our solidarity with our Union brothers and sisters, and
that's what we're after here.
Rice echoed that sentiment:
Q 	Is it important to 522 to communicate that
message?
A 	Absolutely.
	I'm
very proud -
I've
always been a
proud member
of
the Union. That means something different to
everybody, but
I'm
always proud to see our logo, and
I've
seen it
on every rank, from a fire chief to a firefighter, over the course
of
my career.
. . . What we're talking about today in 2013, it's like a 20-year-
old debate. It is industry standard.
If
you look across the United
States, you will see pictures - I don't care where they work, New
York City, the United States Forest Service, CALFIRE, Los
Angeles, San Diego, El Paso, Dallas. It is common practice that
firefighters wear T-shirts, and you will see IAFF logos here in
Sacramento.
Mccasland testified that the basis for only allowing the two Airport logos on the
Class B uniform t-shirt is to comply with the SCAS Brand Guidelines.
THE PROPOSED DECSION
The ALJ acknowledged that the Board's decision in State
of
California (Department
of
Parks and Recreation) (1993) PERB Decision No. 1026-S (Parks) established the general rule
that wearing union buttons or pins is a protected employee right absent special circumstances.
The ALJ never reached the special circumstances defense, concluding that the Parks analysis
does not apply to the facts of this case. According to the proposed decision, under existing
14

15
precedent, bargaining unit employees do not enjoy a statutorily guaranteed right to add the
union logo to t-shirts and caps required to be worn as part
of
a public safety firefighter
uniform. Therefore, as the proposed decision states, Local 522 failed to meet its burden
of
proving that the County unlawfully interfered with employee rights guaranteed by the MMBA;
and, according to the proposed decision, the derivative denial
of
Local 522's right to represent
bargaining unit employees necessarily fails as well. The ALJ dismissed the complaint and
underlying unfair practice charge.
The ALJ also considered the County's argument that Local 522 waived its rights to
wear uniform apparel bearing the Local 522 logo by agreeing to the management rights and
uniform allowance articles in the Agreement. The proposed decision rejects that defense,
concluding that the County did not meet its burden
of
demonstrating a clear, unmistakable and
intentional relinquishment
of
Local 522's rights in the contract language.22
LOCAL 522'S EXCEPTIONS
Local 522 contends that the ALJ erred by drawing two unnecessary distinctions
between the facts here and the facts in Parks, supra, PERB Decision No. 1026-S, and other
precedential decisions. According to Local 522, there is no basis for distinguishing between
wearing union buttons and pins, on the one hand, and wearing apparel bearing union insignia,
on the other, in concluding that the former is a protected right, and the latter is not. There is
also no basis, according to Local 522, for finding the statutorily guaranteed right to wear union
insignia to be inapplicable to employees required to wear a public safety firefighter uniform.
22
The County did not except to the waiver analysis or the conclusion reached on the
waiver issue in the proposed decision. Exceptions not specifically urged are waived. (PERB
Reg. 32300, subd. (c).) 
15

Local 522 asserts that the firefighters have a statutorily guaranteed right, under
longstanding precedent, to wear the union logo on the Class B uniform t-shirt, cap and
sweatshirt as well as on the sweatpants and shorts. And, there are no special circumstances
warranting the restrictions placed on that right under the County's "No Union Logo" policy.
THE COUNTY'S RESPONSE
The County's argument is succinctly stated in the main heading
of
the County's
response: "The wearing
of
union logos is not a protected right." The County contends that
while the firefighters have a statutorily guaranteed right to wear union buttons or pins, they
have no statutorily guaranteed right to wear uniform apparel bearing the Local 522 logo.
Because there is no guaranteed right, the County claims it does not have the burden to prove
special circumstances justifying the implementation
of
the "No Union Logo" policy.
The County argues that the proposed decision is clearly correct and that the Board
would have to make new law in order to find a statutorily protected right to wear a union logo
on apparel required to be worn as part
of
a public safety firefighter uniform.
DISCUSSION23
As explained below, we hold that absent special circumstances, the firefighters have a
statutorily protected right to wear Class B uniform apparel bearing the Local 522 logo, while
on duty. Through this form
of
expression, they are able to demonstrate, in a visible and
positive manner, their union solidarity and pride. There has been no showing
of
special
23
Local 522's request for oral argument is denied. The Board historically denies requests
for oral argument when an adequate record has been prepared, the parties had ample opportunity
to present briefs and have availed themselves of that opportunity, and the issues before the Board
are sufficiently clear to make oral argument unnecessary. (Antelope Valley Health Care District
(2006) PERB Decision No. 1816-M; Monterey County Office of Education (1991) PERB
Decision No. 913.)
16

circumstances by the County that would warrant the restrictions on this statutorily-protected
right uncler the "No Union Logo" policy. Accordingly, the "No Union Logo" policy is, on its
face, unlawful. Such a policy interferes with firefighters in the exercise
of
their right to
participate in the activities
of
an employee organization
of
their own choosing for the purpose
of
representation on all matters
of
employer-employee relations.
Retroactivity
The County contends that existing precedent draws a line at union buttons and pins.
The County further contends that, because no prior Board decision
24
has established that
employees have the right to wear clothing bearing union insignia while at work, no such right
exists. According to the County, the Board would be creating new precedent
if
it were to find
that ARFF firefighters have the right to wear Class B uniform apparel bearing the union logo
while on duty.
By this argument, we understand the County to say that any new precedent created by
the
aoard
should not be applied retroactively to find the County in violation
of
the MMBA in
this case. Implicit in the County's argument is that every time the Board applies general
24
Local 522 and the County argue over the significance
of
Calaveras County Water
District (2009) PERB Decision No. 2039-M (Calaveras), a discrimination/retaliation case in
which the charging party alleged that she was terminated for engaging in protected activity.
On appeal, the Board affirmed the partial dismissal
of
the charge for failure to establish the
nexus element
of
a retaliation claim. Regarding the protected activity element, the Board
stated that the charge alleged facts demonstrating four separate instances
of
protected activity
including the following: 	"she participated in informational picketing, signed pro-union
petitions and dressed in union insignia at work." The County correctly asserts that the Board
did not specifically address the issue whether wearing union t-shirts and union insignia is a
protected right pursuant to Parks, supra, PERB Decision No. 1026-S, nor did it address the
precise issue in this case whether such a right extends to public safety officers. The language
of the decision, however, seems to convey a tacit recognition on the part of the Board that the
holding in Parks is not limited to union buttons and pins. Regardless, the debate over
Calaveras is mooted by this decision, which does not rely on Calaveras for support.
17

principles
of
law to a different set
of
facts, it is creating new precedent that breaks with the
past.
If
that were true, every decision issued by the Board would be guilty
of
that offense. To
the contrary, a Board decision is necessarily limited to the facts presented. That does not
mean, however, that each successive decision involving the same issue but different facts
represents a departure from precedent rather than, simply, an application
of
the general law to a
different set
of
facts.
Moreover, the County's argument runs counter to time-honored, basic notions in our
legal tradition about the effect to be given judicial, or in this case, quasi-judicial, decisions.
The general rule is that judicial decisions are given retroactive effect. (Camper
v.
Workers'
Compensation Appeals Board (1992) 3 Cal.4th
679, 688; County
of
Sacramento
v.
Superior
Court (2009) 180 Cal.App.4
th
943, 953.) "Indeed, a legal system based on precedent has a
built-in presumption
of
retroactivity." (Id. at p. 953, quoting People
v.
Guerra (1984)
37 Cal.3d 385, 399, internal citations omitted.) Judicial decisions are given retroactive effect
"even
if
they represent a clear change in the law." (Bearden
v.
U.S. Borax, Inc. (2006)
138 Cal.App.4
th
429,442, quoting Godinez
v.
Schwarzenegger (2005) 132 Cal.App.4
th
73,
91.)2 5
If
a decision does not establish a new rule
of
law, the general rule that judicial decisions
are to be given retroactive effect applies without exception. (County
of
Sacramento
v.
Superior Court, supra, 180 Cal.App.4 th
943, 953.)
"In
that event the decision simply becomes
25
Where there has been a change in law, an exception may be made to the rule
of
retroactivity if fairness and public policy considerations are so compelling that, on balance,
they outweigh considerations underlying the general rule. (Bearden
v. U.S. Borax, Inc.,
supra, 138 Cal.App.4
th
429, 442.) Such considerations include the parties' reasonable reliance
on the former rule, the nature of the change as procedural or substantive, retroactivity's effect
on the administration of justice and the purposes to be served by the new rule. (Camper
v.
Workers' Compensation Appeals Board, supra, 3 Cal.4 th 679, 688; Lazarin v. ·Superior Court
(2010) 188 Cal.App.4
th
1560, 1581.) 
18

part
of
the body
of
case law
of
this state, and under ordinary principles
of
stare decisis applies
in all cases not yet final." (Id. at p. 953, quoting People
v.
Guerra (1984) 37 Cal.3d 385, 399.)
The California Supreme Court set forth the standard to be used to determine whether a
judicial decision sets forth a new rule
of
law:
The United States Supreme Court has recently attempted to define
the decisions involving a "clear break with the past" (Desist
v.
United States (1964) 394 U.S. 244,248 [22 L.Ed.2d 248,254,
89 S.Ct. 1030]) that raise an issue
of
retroactivity. According to
United States
v.
Johnson (1982) 457 U.S. 537
[73
L.Ed.2d 202,
102 S.Ct. 2579], "[ such] a break has been recognized only when a
decision explicitly overrules a past precedent
of
this Court
[citations], or disapproves a practice this Court has arguably
sanctioned in prior cases [citations], or overturns a longstanding and
widespread practice to which this Court has not spoken, but which a
near-unanimous body
of
lower court authority has expressly
approved." (457 U.S. 537 at p. 551, [73 L.Ed.2d at p. 215, 102 S.Ct.
at p. 2588].)
(Donaldson
v.
Superior Court (1983) 35 Cal.3d 24, 37.)
Under the rule
of
retroactivity, the Board's decision herein does not change a settled
rule. It neither overturns prior precedent, nor overturns a longstanding and widespread practice
expressly approved in prior precedent. It merely decides a legal question by elucidating and
applying prior precedent.
Contrary to the County's argument, the right to wear union buttons or pins and the right
to wear clothing bearing the union insignia at work are not two separate species
of
rights.
They involve the same statutorily-protected, fundamental right. By recognizing that this right
applies equally to cases where the union logo is on a uniform or other apparel as it does to
cases where the union logo is on a pin or button, this decision does not establish a new rule
and, therefore, does not raise the question whether an exception to the rule of retroactivity
should be made. 	Accordingly, "[n]o reason appears not to apply today's decision to this case"
19

or to any other case before PERB involving the same issue that is not yet final. (Brennan
v.
Tremco (2001) 25 Cal.4 th 310, 318; see also Donaldson
v.
Superior Court, supra, 35 Cal.3d 24,
37; Lazarin
v.
Superior Court, supra, 188 Cal.App.4th 1560, 1582.)
Turning back to the issue in this case, the existence
of
the fundamental right to wear
union insignia at work does not turn on whether the union insignia is imprinted on a button or
pin, or on an article
of
clothing. It also does not turn on whether the article
of
clothing that
bears the union insignia is part
of
a public safety firefighter uniform required to be worn while
on duty. As such, the rule
oflaw
set forth in Parks, supra, PERB Decision No. 1026-S, is
applicable here.
The right to wear union insignia at work is not absolute.
	It is subject to a narrow
exception. If the employer demonstrates "special circumstances" warranting restrictions on
this right, then a violation will not be found. 	Here, however, the County made no attempt to
demonstrate special circumstances, putting all their eggs in the protected rights basket.
Therefore, we hold that the County's "No Union Logo" policy constitutes interference with the
firefighters' statutorily-protected right to wear Class B uniform apparel bearing the Local 522
logo while on duty.26
26
While the County has approved the wearing
of
sweatpants and shorts bearing the
Local 522 logo, it has presumably done so as a matter
of
management prerogative and not in
recognition
of
the firefighters' statutorily protected right. Therefore, in this decision, we make
no distinction between the wearing
of
the union logo on the Class B uniform t-shirt, cap and
sweatshirt, which the County has not approved, and the sweatpants and shorts, which it has.
Although the t-shirt, cap and sweatshirt are part
of
the Class B uniform, and the sweatpants and
shorts are not, the firefighters' intention with regard to both categories is the same, i.e., to
exercise the right to wear apparel bearing the Local 522 logo primarily while working (and
working out or winding down from work after 5:00 p.m.) amongst themselves at the fire
station for the purpose of demonstrating union solidarity and pride.
20

The Applicable Law: Parks27
In Parks, the State
of
California Department
of
Parks and Recreation prohibited
maintenance service personnel from wearing union buttons on their uniforms. The Board
began its analysis in Parks by observing that in cases alleging an (a) violation, a violation will
be found when the employer's acts interfere with the exercise
of
protected rights and the
employer is unable to justify its actions by proving operational necessity, citing Carlsbad
Unified School District (1979) PERB Decision No. 89 (Carlsbad). The Board then adopted the
private sector standard set forth in Republic Aviation Corp.
v.
NLRB (1945) 324 U.S. 793
(Republic Aviation):
28
We concur with the ALJ that the wearing
of
union buttons is a
protected right, absent special circumstances. However, in
affirming the ALJ's proposed decision, we disagree with the
State's contention that in finding a protected right, we have
concluded that it is a per se violation for an employer to limit or
prohibit the wearing
of
buttons. 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.
In private sector cases, this view has been supported.
27
Parks, supra, PERB Decision No. 1026-S, was decided under the Ralph C. Dills
Act (State Employer-Employee Relations) (Dills Act). (The Dills Act is codified at sec. 3512
et seq.) The rule in Parks does not, however, tum on language unique to the Dills Act. The
holding was based on general principles of the law
of
interference and on private sector cases.
The rule in Parks was applied to a case decided under the Educational Employment Relations
Act (EERA) in East Whittier School District (2004) PERB Decision No. 1727 (East Whittier).
(EERA is codified at sec. 3540 et seq.) As the Board in East Whittier stated: "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." The rule in
Parks applies equally to cases decided under the MMBA as it does to cases decided under the
other labor relations statutes administered by PERB.
28 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act (NLRA) and California labor relations statutes
with parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608; the
NRLA is codified at 29 U.S.C. section 141 et seq.)
21

The Board in Parks made clear that once the charging party establishes that the
employer has placed limitations on or prohibited the exercise
of
an employee's protected right
to wear union insignia at work, the burden shifts to the employer to demonstrate special
circumstances. As the Board stated, "Since the State banned the wearing
of
all union buttons,
it is incumbent upon the State to demonstrate special circumstances for such a prohibition."
As the Board stated in East Whittier, the rule announced in Parks "is nothing more than
a carbon copy
of
the Republic Aviation standard" decided under the NLRA. The United States
Supreme Court cited with approval the National Labor Relations Board's (NLRB) conclusion
that: 	"[T]he right
of
employees to wear union insignia at work has long been recognized as a
reasonable and legitimate form
of
union activity, and the respondent's curtailment
of
that right
is clearly violative
of
the Act." (Republic Aviation, supra, at p. 793, fn. 7.) Republic Aviation
was decided in 1945. PERB has long recognized Republic Aviation as well-settled law.
As the Supreme Court has stated, the right
of
employees to self-organize and bargain
collectively established under the NLRA "necessarily encompasses the right effectively to
communicate with one another regarding self-organization at the jobsite." (Beth Israel Hosp.
v.
NLRB (1978) 437 U.S. 483, 491.) The practice
of
wearing union insignia furthers that right.
(NLRB
v.
Autodie Int'/, Inc. (6 th
Cir. 1999) 169 F.3d 378, 383.)
In the federal sector, the Federal Labor Relations Authority (FLRA) has also concluded
that wearing a union button demonstrates employee support for the labor union, showing pride
and affiliation. Therefore, absent special circumstances, wearing union insignia is protected.
(US. Dept.
of
Justice
v.
FLRA (5 th Cir. 1992) 955 F.2d 998.)
22

The Board in Parks, supra, PERB Decision No. 1026-S, articulated the factors to be
considered in determining whether the employer's justification for the prohibition
of
or
limitation on wearing union insignia at work constitutes special circumstances. The Board
stated:
Courts have reviewed the circumstances in which buttons are
worn, the nature and physical appearance
of
pins or buttons, the
nature
of
the employer's activities and the need for production,
safety and discipline. (Justice v. FLRA [supra, 955 F.2d 998].)
In cases where special circumstances have created an operational
necessity which justified a prohibition, there has been evidence
that wearing union buttons or insignia has disrupted the
employer's operations or maintenance
of
safety or discipline.
Special circumstances justifying a prohibition
of
union buttons
or insignia existed where: (1) the buttons could jeopardize
employee's safety (Andrews Wire Corporation (1971)
189 NLRB 108; (2) damaged machinery or products (Campbell
Soup Company ((1966)] 159 NLRB 74[,] enforced in part,
enforcement denied in part on other grounds,
(5
th
Cir. 1967)
380 F.2d 372; (3) exacerbate employee dissension (United
Aircraft Corp. (1961) 134 NLRB 1632; (4) cause distraction from
work demanding great concentration (Fabri-Tek, Inc. v. NLRB
(8 th Cir. 1965) 352 F.2d 577; (5) disrupt the uniformity,
discipline, or appearance
of
neutrality among para-military
law enforcement employees (Justice v. FLRA); or (5) [sic]
damage the image to the public by the employees coming into
contact with the public in the absence of a protected purpose
(Harrah's Club and Burger King Corp. v. NLRB (6th
Cir. 1984)
725 F.2d 1053[)].l29J
(Parks, supra, proposed decision at pp. 18-19, internal parallel citations omitted.)
29
In subsequent 6
th
Circuit cases, the 6
th
Circuit has distanced itself from the
holding in the Burger King Corporation case that mere employee contact with the public
permits an employer to restrict union insignia. (See NLRB
v.
St. Francis Healthcare
Centre (6
th
Cir. 2000) 212 F.3d 945, 958-960; see also P.S.K. Supermarkets, Inc. (2007)
349 NLRB 34 [exposure of customers to union buttons, standing alone, does not constitute
special circumstances].) 
23

In responding to the employer's argument that an operational necessity is created by its
desire to keep employee uniforms politically neutral and thereby avoid antagonizing any 	·
members of the public who might be offended by a union button, the Board in Parks held:
This is not a persuasive argument. The legislature has, by statute,
determined that employees have a right to be represented by
employee organizations. This includes the right of employees to
show their allegiance to, and solidarity with, other members and
the organization. Furthermore, the legislature has determined that
collective bargaining is a reasonable method of resolving disputes
and will promote the improvement of employer/employee
relations within the State of California. The fact that some
members of the public may find that offensive is not sufficient
justification to deny employees their rights.
(Parks, supra, proposed decision at pp. 20-21.) This is no less true under the·MMBA. As
declared in section 3500, the purpose of the MMBA is to promote full communication between
public employers and employees by providing a method of resolving disputes over terms and
conditions of employment. Another of the MMBA's purposes is to provide a uniform basis for
recognizing the right of public employees to join organizations of their own choice and be
represented by those organizations in their employment relationships with public agencies.
The special circumstances exception is narrow. A policy t~at curtails an employee's
right to wear union insignia at work is "presumptively invalid." (Goodyear Tire and Rubber
Co. (2011) 357 NLRB No. 38.) "General, speculative, isolated or [conclusory] evidence of
potential disruption to an employer's operations does not amount to special circumstances."
(Ibid.)
Interference with a Protected Right - the (a) Violation
The right of employees to wear union insignia at work is a time-honored, legitimate
form of union activity. It derives from employees' fundamental right to communicate with one
another regarding self-organization at the jobsite. Here, the ARFF firefighters wish to wear
24

Class B uniform and other (physical fitness and sleepwear) apparel bearing the Local 522 logo
to express to one another solidarity and pride in their affiliation with their exclusive
representative. Firefighters in the Metro and City Fire Departments wear the Local 522 logo
on their t-shirts and caps. Firefighters across the nation wear apparel bearing the insignia of
firefighter-only unions. The ARFF firefighters are proud of their success in achieving a
firefighters-only bargaining unit for themselves and wish to express that pride through the
wearing of union insignia in the same way that the firefighters from local municipal fire
departments, responding to emergencies at the Airport alongside the ARFF firefighters, do. In
prohibiting the wearing of union insignia while on duty, the County's "No Union Logo" policy
is, on its face, presumptively invalid and violative of the MMBA.
The County does not dispute that there is a statutorily-protected right to wear union
insignia but contends that it extends only to buttons and pins. The County offers no logical
argument why a protected right to wear union insignia transforms into an unprotected right
because the insignia appears on clothing rather than on an object that is attached to clothing.
This distinction is not material to the question involved here.30 (See, e.g., Guard Publishing
Company v. NLRB (D.C. Cir. 2009) 571 F.3d 53 [prohibition on wearing at work union
armband by employee in position requiring interaction with the public]; World Color USA
Corp. (2014) 360 NLRB No. 37 [prohibition on wearing at work union baseball caps];
Goodyear Tire and Rubber Company, supra, 357 NLRB No. 38 [prohibition on wearing at
30 The County takes issue with Local 522's reliance on two NLRB cases cited for the
proposition that the right to wear union insignia extends beyond buttons and pins, contending
that neither decision contains an analysis of the law or discussion of the issue. While we agree
with the County's observations about the analytical usefulness of Devilbliss Company (1953)
102 NLRB 1317 and Overnite Transportation Company (1981) 254 NLRB 132, there are
ample other NLRB decisions supporting Local 522's proposition, which contain more explicit
legal analyses, as seen in the parenthetical following this footnote in the main text.
25

work union t-shirts making reference to returning retirees as SCABs]; Allstate Power Vac., Inc.
(2009) 354 NLRB No.
111
[prohibition on wearing at work union decals on hardhats and
t-shirts that do not mock or adversely portray the employer's product]; Great Plains Coca-
Cola Bottling Company (1993) 311 NLRB 509 [prohibition on wearing at work union
jacket].)31 As the NLRB held in the Great Plains Coca-Cola Bottling Company decision, the
NLRB "treats an article
of
clothing the same as a button/' citing Mack's Supermarkets, Inc.
(1988) 288 NLRB 1082, a case involving, in part, a prohibition on the wearing
of
union caps
inside and outside
of
the employer's stores.
Likewise, the fact that an employer maintains a dress code or uniform policy does not
in and
of
itself justify a prohibition on wearing union insignia. (See World Color
USA
Corp.,
supra, 360 NLRB No. 37 [mere maintenance
of
overbroad hat policy construed to prohibit
statutorily-protected activity found to violate the NLRA independent
of
enforcement
of
policy,
citing Guardsmark LLC
v.
NLRB (D.C. Cir. 2007) 475 F.3d 369,375]; Great Plains Coca-
Cola Bottling Company, supra, 311 NLRB 509 [employee told by supervisor that union jacket
unacceptable and only Coca-Cola jackets allowed to be worn.) In World Color USA Corp., the
employer argued that the union cap would interfere with the company's public image. The
NLRB found that the company failed to show that the union caps would detract from its
employee presentation desires or objectives, stating that "[a]n employer cannot avoid the
31
See also, 1 Higgins, The Developing Labor Law (5
th
ed. 2006) chapter 6.ILB.1.e,
page 117:
In Republic Aviation the Supreme Court upheld, as a protected
right, the right
of
employees to wear union buttons while at work.
This general rule also encompasses the right to wear other
emblems, such as badges and t-shirts, demonstrating union
support.
26
(Fn. omitted.)

'special circumstances' test simply by requiring its employees to wear uniforms or other
designated clothing, thereby precluding the wearing
of
clothing bearing union insigni~."
(World Color
USA
Corp., supra, 360 NLRB No. 37.)
Here, the County argues that the firefighters are required to wear a public safety
uniform, which is distinct from other types
of
work apparel. The County offers no logical
argument why a protected right to wear union insignia transforms into an unprotected right
because the insignia appears on apparel worn by a firefighter rather than on apparel worn by
those employed in other classifications or occupations. On the specific protected right
involved here, the right to wear union insignia, the law does not divide employees into
protected and unprotected categories by occupation, nor should it. Under the Carlsbad, supra,
PERB Decision No. 89, burden shifting framework, special circumstances relating to an
employee's classification or occupation may warrant a prohibition or limitation on the right to
wear union insignia at work upon a concrete, fact-based evidentiary showing. Absent such a
showing, the statutorily-protected right to wear union insignia is absolute.
The County contends that one
of
the cases relied on by Local 522 on this point32
supports the County's position, not that
of
Local 522. The County is correct that the court in
32
Another case relied on by Local 522 is Sheriff
of
Worcester Cnty.
v.
Labor Relations
Comm'n (2004) 60 Mass. App. Ct. 632,805 N.E.2d 46. While we agree with the County that
this case is not binding precedent and involves union pins rather than union apparel, the court's
discussion is nonetheless
of
note. As Local 522 points out, Massachusetts' labor relations statute
is similar to the MMBA in providing employees with the right to form, join or assist any
employee organization for the purpose of collective bargaining. The court states:
We agree with the sheriff that "the need for discipline, uniformity
and an absolutely impartial appearance exists at the Jail." People
with violent tendencies live at the jail. A paramilitary organization
and command structure are essential for the safety of inmates and
correction officers alike. But the long period before April 22,
1997, during which the sheriff had no policy prohibiting pins, and
27

US. Dep't
of
Justice,
lNS.,
Border Patrol, El Paso,
Tex.
v.
Fed Labor Relations Auth.
(5
th
Cir. 1992) 955 F.2d 998 held that border patrol agents required to wear a prescribed
Immigration and Naturalization Service (INS) uniform had no statutorily-protected right to
wear a union lapel pin. This decision, however, does not stand for the proposition proffered by
the County that firefighters who are required to wear a public safety uniform do not enjoy the
right, absent special circumstances, to wear union insignia. The court employed the same test
used in private sector cases, stating that "the employee has the right to wear a union pin on his
uniform absent special circumstances."
(Id.
at p. 1004.) In describing the type
of
special
circumstances found to justify a prohibition on the exercise
of
the right to wear union insignia,
the court said that "[i]n cases where special circumstances were found to exist, there is evidence
linking the wearing
of
union insignia to a disruption
of
the employer's operation's [sic] and
maintenance
of
safety and discipline." (Ibid.) The court then concluded that the employer had
proven the presence
of
special circumstances warranting the restriction on the employees' right
to wear union insignia.
33
the fact that his April 22 edict appears to have fallen with
particular force on union pins, supports the commission's
conclusion that no special circumstances connected to the jail's
mission, command structure, need for discipline or other functional
requirement justified the sheriffs unilateral prohibition
of
the
union buttons employees presumptively were entitled to wear. See
Boise Cascade Corp., 300 N.L.R.B. 80, 84 (1990) (evidence that
pins were worn for six months without incident was "most
important point" in determining absence
of
special circumstances).
(Sheriff
of
Worcester Cnty.
v.
Labor Relations Comm'n, supra, 60 Mass. App. Ct. 632,643, 805
N.E.2d 46, 54.)
33 The proposed decision cites to another FLRA case involving the INS, LNS.
v. Fed.
Labor Relations Auth. (9
th
Cir. 1988) 855 F.2d 1454, which determined, under the operative
statutory language, that INS inspectors required to wear an official INS uniform do not have a
statutorily-protected right to wear union insignia regardless of special circumstances. This case
28

Having concluded that Local 522 has met its burden
of
proof, the burden shifts to the
County under Carlsbad, supra, PERB Decision No. 89, to prove its affirmative defense
of
operational necessity, i.e., special circumstances. The County has not met its burden, nor did
the County attempt to meet its burden. Instead, the County rested its case on the mistaken
belief that the basic right to wear union insignia as an expression
of
union solidarity and pride
is an outlier and commands no persuasive value in any analysis on the issue presented. As the 5
th
Circuit explained:
We cannot immediately accept the conclusion the Ninth Circuit
reached because in assessing management's right to require
unadorned uniforms, it simply assumed that management's
statutory right to require a uniform supersedes the employee's
statutory right to assist labor unions by wearing a pin. Nothing in
the Statute, however, subordinates the rights granted to employees
under section 7102 to the rights granted management under section
7106(b)(l). Since section 7106(b) does not explicitly supersede
other rights granted under the chapter, the FLRA's conclusion that
management's statutory right to prescribe a uniform does not
automatically include the right to prohibit union pins is reasonable
and entitled to deference.
(U.S. Dep 1
t
of
Justice,
INS.,
Border Patrol, El Paso, Tex.
v.
Fed. Labor Relations Auth. supra,
955 F.2d 998, 1003.) The 9th
Circuit's decision was also called into doubt by the FLRA itself,
the federal agency charged with the responsibility for enforcement, in a case involving INS
border patrol agents required to wear INS uniforms. As stated:
We respectfully disagree with the [9 th
Circuit] court's assessment
of
the rights granted by section 7102
of
the Statute and our use
of
the special circumstances balancing test. However, in view
of
the
court's decision, we take this opportunity to more fully explicate
the statutory basis for allowing employees here to wear a union
lapel pin.
(U.S. Dep 1
t
of
Justice Immigration & Naturalization Serv. United States Border Patrol San
Diego Sector San Diego, California (Respondent) & Am. Fed1
n ofGov
1t Employees Local 1613
Nat'/ Border Patrol Council (Charging Party), (Nov. 30, 1990) 38 F.L.R.A. 701, 712.) The
decision went on to explicate the statutory basis for its conclusion that "use
of
the special
circumstances standard, of course assumes that employees covered by the statute have a basic
right to wear union insignia." (Id. at p. 718.)
29

does not belong to firefighters required to wear public safety uniforms. The County introduced
no evidence supporting the existence
of
special circumstances warranting the "No Union
Logo" policy.
34
The hearing record supports the opposite conclusion, i.e., that no special
circumstances exist.
Firefighters from neighboring municipal fire departments wear t-shirts bearing the
Local 522 logo, and respond to emergencies at the Airport wearing the Class B uniform t-shirt
without the uniform shirt. By their example, we discern no evidence that would support an
argument by the County that special circumstances exist to deprive ARFF bargaining unit
employees the right to wear uniform apparel bearing the union logo while on duty. Rice
confirmed that as a manager in the Metro Fire Department he encountered no problems with
firefighters under his command wearing the uniform t-shirt bearing the Local 522 logo. When
asked at the formal hearing whether such practice caused operational problems, confusion in
responding to calls, confusion with the public or impairment
of
operations, he responded in the
negative to each question.
After Local 522 became the exclusive representative
of
the ARFF firefighters, the
Class B uniform t-shirt, cap and sweatshirt bearing the Local 522 logo started to be worn in
public and at the fire station. This practice caused no impact other than the wearer of the
34
Although the County introduced no evidence at the formal hearing
of
special
circumstances warranting the "No Union Logo" policy, Mccasland was asked on direct
examination the following question: "[W]hat is the basis for only allowing the Airport logos
on the T-shirts?" He replied that it was "to comply with the Airport's policy for branding."
SOP 100-01, however, removed the requirement that logos on Class B uniform t-shirts, job
shirts and sweatshirts, and caps comply with the SCAS Brand Guidelines. More to the point,
the Brand Guidelines apply only to SCAS logos. Moreover, as stated above, an employer
cannot avoid the "special circumstances" test by imposing requirements that may be construed
to preclude the wearing of clothing bearing union insignia. (See World Color USA Corp.,
supra, 360 NLRB No. 37.)
30

apparel occasionally being told to take it off. Also, every October is National Breast Cancer
Awareness month. In support thereof, the firefighters in the Metro and City Fire Departments
wear pink uniform t-shirts bearing the Local 522 logo. The ARFF firefighters have been
allowed to do the same for the last three years. It is presumed from the County's approval of
such practice that the wearing of the t-shirt bearing the Local 522 logo during the month of
October has caused no problems notwithstanding its pink color or union insignia. It is also
presumed from the County's approval of the Local 522 logo on sweatpants and shorts that such
practice similarly has posed no problems.
The firefighters seek the right to wear the Class B uniform t-shirt, cap and sweatshirt,
and sweatpants and shorts primarily for wear at the station and outside of public view. When
in public, firefighters are wearing their Class B uniform t-shirt under their Class B uniform
shirt 90 percent of the time. It is evident from the uneventful wearing of uniform apparel
bearing the Local 522 logo by the firefighters at Metro and City Fire Departments, the
uneventful wearing of uniform apparel bearing the Local 522 logo by firefighters from all fire
departments during the October Breast Cancer Awareness observance, and the uneventful
wearing of uniform and other apparel bearing the Local 522 logo by the ARFF bargaining unit
employees prior to implementation of the "No Union Logo" policy that the "No Union Logo"
policy is not grounded in a fact-based rationale that meets the special circumstances standard.
There is not one scintilla of evidence in the hearing record that wearing Class B
uniform and other (physical fitness and sleepwear) apparel bearing the Local 522 logo would
detract from the firefighters' professional appearance, interfere with the command structure
under which the firefighters operate, disrupt their operational mission or objectives, intrude on
any managerial prerogative including the need to maintain discipline and assure safety at the
31

jobsite or otherwise cause any problems or difficulties for the County in providing rescue and
firefighting services at the airport facilities served by ARFF.35 The failure
of
the County to
mount a defense
of
its "No Union Logo" policy based on special circumstances is likely best
explained by the absence
of
any conceivable special circumstances on which to base such a
defense. 	In any event, the County failed to meet its burden
of
proving special circumstances.
Therefore, under the test set forth in Parks, supra, PERB Decision No. 1026-S, in the absence
of
special circumstances, we conclude that the firefighters have a statutorily-protected right to
wear the Class B uniform t-shirt, cap and sweatshirt bearing the Local 522 logo while on duty.
This right also applies to physical fitness and sleepwear apparel, including sweatpants and
shorts, bearing the Local 522 logo worn during off-duty standby.
Denial
of
the Right to
Represent-
the (b) Violation
The Board has found a section (b) violation where the employer's conduct interfered
with, or tended to interfere with, the exclusive representative's ability and right to represent
bargaining unit employees. (San Francisco Unified School District (1978) PERB Decision
No. 75; Santa Monica Community College District (1979) PERB Decision No. 103.) The
35
As mentioned above, the County did not argue special circumstances let alone the
following point, but it bears mention that public exposure to the Local 522 logo on Class B
uniform apparel at the Airport would not alone constitute special circumstances warranting the
"No Union Logo" policy. See footnote 30, ante. As the D.C. Circuit court stated:
The claim that Kangail' s appearance implicates a special
circumstance simply because he interacts with the public is
contrary to the NLRB' s longstanding rule that "customer
exposure to union insignia alone is not a special circumstance
allowing an employer to prohibit display of union insignia by
employees."
(Guard Publishing Company
v.
NLRB, supra, 571 F.3d 53, 61, quoting Flamingo Hilton-
Laughlin (1999) 330 NLRB 287, 292.)
32

potential representational right that is implicated where an employer, absent special
circumstances, has implemented a ban on wearing the union logo at work is the right
of
the
exclusive representative to communicate with its members at the work sites. The source
of
this
right is found in the right
of
access. In the past, the Board has held that harm to employees'
protected rights alone does not form the basis for an independent violation
of
the exclusive
representative's right to represent (State
of
California (Franchise Tax Board) (1992) PERB
Decision No. 954-S). The Board in Franchise Tax Board stated that "[a] showing
of
theoretical impact is insufficient."
(Id.
at p. 4) We view the issue differently.
The harm to employees' protected rights and the harm to employee organizations'
protected rights are inseparable in this factual setting.36 The County's "No Union Logo"
policy is a policy whose target is Local 522. After all, Local 522's insignia is the insignia that
is banned under the policy. Local 522 has just as much an interest in having its logo worn as
the bargaining unit employees have in wearing it. By prohibiting bargaining unit employees
from expressing their pride through the wearing
of
union insignia, Local 522 is being deprived
an important organizational tool. Through the wearing
of
union insignia, a union fosters
solidarity amongst its members and communicates a message
of
support. A ban on union
logos does not present theoretical harm to the employee organization. It presents an existential
harm that goes to the heart
of
a union's main organizational objective --- building a strong,
unified base. And, communicating that unity and strength to the employer is equally as
important. Accordingly, we conclude that the County interfered with protected employees'
36
Our conclusion that evidence establishing an "a" violation concurrently establishes a
"b" violation is limited to cases involving policies prohibiting or placing limitations on the
wearing of union insignia at work absent special circumstances. In other types of interference
cases, establishing an "a" violation may not necessarily be sufficient to establish a "b"
violation. It will depend on whether the harm to the employee organization's representational
rights is as direct as it is in this setting. 
33

rights and, by the same conduct, concurrently denied Local 522 its right to represent
bargaining unit employees when the County unilaterally implemented the "No Union Logo"
policy.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found that the County
of
Sacramento (County) violated the Meyers-Milias-Brown
Act
(MMBA),
Government Code section 3500 et seq. when it unilaterally implemented a
blanket "No Union Logo" policy prohibiting bargaining unit employees from wearing clothing
bearing the Sacramento Area Firefighters, IAFF Local 522 (Local 522) logo while on duty.
Therefore, pursuant to MMBA section 3509, subdivision (b), it is hereby ORDERED
that the County, its administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Interfering with protected employee rights by prohibiting firefighters in
the Aircraft Rescue & Firefighting Division Unit 30 from wearing the Class B uniform t-shirt,
cap and sweatshirt bearing Local 522 logo while on duty; and by prohibiting them from
wearing physical fitness and sleepwear apparel, including sweatpants and shorts, bearing the
Local 522 logo during off-duty standby.
2. 	Denying Local 522 the right to represent bargaining unit employees by
prohibiting firefighters in the Aircraft Rescue & Firefighting Division Unit 30 from wearing
the Class B uniform t-shirt, cap and sweatshirt bearing the Local 522 logo while on duty; and
by prohibiting them from wearing physical fitness and sleepwear apparel, including sweatpants
and shorts, bearing the Local 522 logo during off-duty standby.
34

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind the "No Union Logo" policy as memorialized in Battalion Chief
John Conneally's e-mail messages
of
October 20 and 27, 2011.
35
2. 	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. The Notice must be signed by an authorized agent
of
the County, indicating that it will comply with the terms
of
this Order. Such posting shall be
maintained for a period
of
30 consecutive workdays. Reasonable steps shall be taken to ensure
that the Notice is not reduced in size, altered, defaced or covered with any other material. In
addition to the physical posting requirement, the Notice shall be posted by electronic message,
intranet, internet site and any other electronic means customarily used by the County to
regularly communicate with its employees in the bargaining unit represented by Local 522.
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 County shall 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 Local 522.
Members Huguenin and Winslow joined in this Decision.

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-787-M, Sacramento Area Fire
Fighters, JAFF Local 522
v.
County
of
Sacramento, in which all parties had the right to
participate, it has been found that the County
of
Sacramento violated the Meyers-Milias-Brown
Act (MMBA), Government Code section 3500 et seq.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Interfering with protected employee rights by prohibiting firefighters in
the Aircraft Rescue & Firefighting Division Unit 30 from wearing the Class B uniform t-shirt,
cap and sweatshirt bearing the Sacramento Area Firefighters, IAFF Local 522 (Local 522) logo
while on duty; and by prohibiting them from wearing physical fitness and sleepwear apparel,
including sweatpants and shorts, bearing the Local 522 logo during off-duty standby.
2. 	Denying Local 522 the right to represent bargaining unit employees by
prohibiting firefighters in the Aircraft Rescue & Firefighting Division Unit 30 from wearing
the Class B uniform t-shirt, cap and sweatshirt bearing the Local 522 logo while on duty; and
by prohibiting them from wearing physical fitness and sleepwear apparel, including sweatpants
and shorts, bearing the Local 522 logo during off-duty standby.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Rescind the "No Union Logo" policy as memorialized in Battalion Chief
John Conneally's e-mail messages
of
October 20 and 27, 2011.
Dated: 	COUNTY OF SACRAMENTO
---------
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 MUSTNOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.