Wilmar Union Elementary School District (PERB 1371E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILMAR TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
WILMAR UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1918
PERB Decision No. 	1371
February 9, 	2000
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Appearances: 	California Teachers Association by Diane Ross,
Attorney, 	for Wilmar Teachers Association, 	CTA/NEA; 	School and
College Legal 	Services by Scott N. 	Kivel 	and Margaret M. 	Merchat,
Attorneys, 	for Wilmar Union Elementary School District.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the Wilmar Union Elementary School 	District 	(District) 	to a
proposed decision by a PERB administrative 	law judge 	(ALJ). 	In
the proposed decision, 	the ALJ concluded that 	the District
violated section 3543.5(a) 	and 	(b) 	of 	the Educational 	Employment
Relations Act 	(EERA)1 by interfering with the right 	of 	employees
JEERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	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 participate 	in the activities 	of 	the Wilmar Teachers
Association, 	CTA/NEA 	(WTA), 	and by interfering with WTA's 	right
of 	access 	and right 	to represent 	employees 	in their employment
relations with the District.
to interfere with, 	restrain, 	or coerce
employees because of 	their exercise 	of 	rights
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.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the proposed decision, 	the 	hearing transcript 	and
exhibits, 	and the 	filings 	of 	the parties. 	Based on the 	following
discussion, 	the 	Board reverses 	the ALJ's proposed decision and
dismisses 	the unfair practice 	charge 	and 	complaint.
FINDINGS 	OF 	FACT
WTA 	is 	an 	employee 	organization within the meaning 	of 	EERA
section 	3540.1(d) 	and the 	exclusive 	representative 	of 	an
appropriate unit 	of 	the District's 	certificated 	employees 	within
the meaning of EERA section 3540.1(e). 	The District 	is an
employer within the meaning of EERA section 3540.1(k).
The District 	consists 	of 	one elementary school, 	Wilson
School, 	and has 	an average daily attendance 	of 	approximately 250
students. 	Wilson School has nine teachers, 	seven of whom are WTA
members.
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Since at 	least January 1992, 	the District has had a policy-
concerning 	the political 	activities 	of 	employees. 	The policy
provides:
The Governing Board believes 	that 	district
employees 	have an obligation 	to prevent 	the
improper use of 	school 	time, 	materials or
facilities 	for political 	campaign purposes.
The 	Superintendent/principal 	shall 	provide
administrative 	regulations 	concerning
political 	activities 	on 	school 	property.
The Board respects 	the 	right 	of 	school
employees 	to engage 	in political 	activities
on their own time. 	Like other citizens, 	they
have 	the 	right 	to use 	the 	school 	for meetings
under 	the 	Civic Center Act. 	Such use 	shall
in no way interfere with the use 	of 	the
facilities 	for school purposes.
When engaging 	in political 	activities,
employees 	shall make 	it 	clear that 	they are
acting as 	individuals 	and not 	as
representatives 	of 	the district.
Also, 	since at 	least January 1992, 	the District has maintained an
administrative 	regulation 	entitled 	"Political 	Activities 	of
Employees" 	stating, 	in relevant part:
Under no 	circumstances 	shall 	district
employees:
1. 	Conduct political 	activities 	on school
property during duty hours.
2. 	Solicit 	campaign support 	or
contributions 	on 	school 	property during 	duty
hours.
3. 	Use 	school 	equipment 	for the
reproduction of 	campaign materials.
4. 	Post 	or distribute 	campaign materials 	on
school 	property.
5. 	Disseminate 	campaign materials 	through
the 	district mail 	service 	or place 	them in
staff mailboxes.
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6. 	Permit 	the use of 	students 	to write,
address 	or distribute 	campaign materials.
Prior 	to 	1996, 	WTA and the District 	operated under a 	stable
bargaining relationship. 	In 1996, 	however, 	contract negotiations
were 	not 	going 	smoothly and WTA felt 	that 	certain actions 	taken
by the District 	favored 	the 	teachers 	who were 	not WTA members.
Some 	teachers 	felt 	intimidated by members 	of 	the District's 	Board
of Trustees 	(Trustees) 	who entered classrooms, 	observed teachers
and took notes 	before 	leaving.
WTA decided 	to become 	active 	in 	the 	1996 	election 	for 	the
District's 	Trustees 	with 	the goal 	of 	electing 	individuals WTA
considered 	to be more 	responsive 	to 	its 	needs 	and 	concerns. 	WTA
interviewed all 	candidates 	and decided 	to 	endorse 	Bill 	Edwards
(Edwards), 	Lisa Gravesen 	(Gravesen) 	and Renee Rivera 	(Rivera).
WTA decided not 	to 	endorse 	incumbent 	Lynn Mumaw 	(Mumaw).
Incumbent 	Drusella West 	did not 	seek 	re-election.
When 	the 	Trustees became 	aware 	that WTA intended 	to 	endorse
candidates 	in 	the upcoming election, 	they became 	concerned about
possible political 	activity on school 	grounds. 	Randell 	Cheek
(Cheek), 	then Trustee president, 	testified that because some
students knew candidates, 	were children of 	candidates, 	or were
neighbors 	of 	candidates, 	the Trustees were 	concerned that
political 	activity 	on 	school 	grounds 	concerning 	the 	election
might 	upset 	those 	students. 	The Trustees believed that political
activities 	on 	campus 	in general would be 	inappropriate.
WTA appointed 	sixth 	grade 	teacher 	Kathleen Anderson
(Anderson) 	as 	head of 	its political 	effort 	involving the
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election. 	As 	one of WTA's 	campaign activities, 	Anderson attached
a 	two-by-eight-foot 	sign to 	the 	lumber rack of her 	truck. 	The
sign 	indicated in block letters 	that 	Edwards, 	Gravesen and Rivera
were 	endorsed by 	the WTA and urged people 	to vote. 	On
October 	11, 	1996,2 Anderson drove her truck carrying the 	campaign
sign 	to 	the Wilson School 	and parked 	it 	in her regular space 	in
the 	school 	parking lot. 	Anderson testified that 	the purpose 	of
displaying 	the 	sign was 	to visibly portray WTA's 	unity and 	common
goal, 	to make a statement 	to the Trustees and the community, 	and
to 	influence voters.
The 	sign on Anderson's 	truck was visible 	to 	students 	through
the window of 	her sixth grade 	classroom. 	Children of Mumaw,
Gravesen and Rivera were 	in Anderson's 	class. 	It was 	common
knowledge 	among parents 	and 	students 	that 	the 	truck with 	the 	sign
was 	owned by Anderson. 	Anderson's 	truck 	could also be 	seen 	from
other locations 	in the school, 	including the Office of
Superintendent/Principal, 	Lee Oliphant 	(Oliphant), 	but not from
other 	classrooms.
Trustee 	Cheek was present 	at Wilson School 	on the morning 	of
October 	11 	to drop off his 	son. 	He was 	approached by six parents
who vociferously 	communicated 	their views 	that 	the 	sign 	on
Anderson's 	truck 	constituted 	inappropriate 	campaigning 	on 	school
grounds. 	The District's actions 	in response to Anderson's 	sign
were 	influenced by 	these parent 	complaints.
2Unless otherwise noted, 	all dates 	refer to 1996.
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Cheek and 	fellow Trustee 	Carol Mungle 	(Mungle) 	testified
that both 	the 	size 	of 	the 	sign and its 	location 	in the parking
lot 	caused 	concern. 	Mungle 	testified 	that 	she would have been
less 	concerned 	if 	the 	truck had been parked at 	the 	far end 	of 	the
parking 	lot where 	it would not 	have been visible 	to 	students 	in
Anderson's 	classroom. 	One 	reason Cheek objected to Anderson's
sign was 	because 	it was 	close 	to the 	school 	and easily visible 	to
students.
After viewing Anderson's 	sign 	from Oliphant's 	office 	and
discussing 	the matter with her and 	the District's 	legal 	counsel,
Cheek 	concluded 	that 	the 	sign violated District 	policy. 	Oliphant
gave Anderson a 	copy of 	the 	administrative 	regulation 	cited
above, 	and 	instructed her to 	remove 	the 	sign 	from her 	truck or
move 	the 	truck off 	of 	school 	property.
Also on October 	11, 	a memorandum from the Trustees was
placed in teacher mailboxes, 	restating 	the 	administrative
regulation pertaining 	to political 	activities 	of 	employees 	and
calling 	for 	compliance with 	the policy. 	During 	the 	lunch break,
Anderson 	removed her 	truck 	from school 	property.
Kristina Hoffman 	(Hoffman) 	is 	a parent with two 	children who
attend Wilson School. 	A few days 	after 	seeing 	the 	sign on
Anderson's 	truck and discussing 	the 	incident with her, 	Hoffman
attached a 	similar 	sign 	to 	the 	back of 	her pickup 	truck.
Hoffman's 	sign was 	six feet 	long and two 	feet 	high. 	It urged
voters to elect Edwards, 	Gravesen and Rivera, 	but made no
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reference 	to WTA. 	Her 	intent 	in displaying 	the 	sign was 	to make
a political 	statement 	to voters.
During 	the 	three weeks prior to 	the November election,
Hoffman parked her 	truck 	in 	the Wilson School 	parking 	lot 	from
approximately 	9:00 	a.m. 	to 	11:30 	a.m. 	on Tuesdays 	and 	from
approximately 10:00 a.m. 	to 12:00 	p.m. 	on Fridays while 	she
worked as 	a 	classroom volunteer. 	She 	also used her 	truck 	to
drive 	students 	on a 	field 	trip 	and 	to 	drop 	off 	and pick up her
children on a 	regular basis.
While parked 	in the Wilson School 	lot, 	Hoffman's 	truck was
visible 	from Anderson's 	classroom at 	times, 	depending on where 	it
was 	located 	in the 	lot. 	Her truck was 	also visible at 	times 	from
Oliphant's 	office, 	which has 	a window facing the parking lot.
Cheek 	saw Hoffman's 	truck parked 	in 	the 	lot within a 	few days
after Anderson had been 	told 	to 	remove 	her 	truck. 	Cheek 	received
a 	complaint 	from a parent about 	Hoffman's 	truck. 	He 	responded
that 	Hoffman's 	truck was 	not 	owned by a 	staff person, 	and that
the District 	had no authority to 	regulate parent 	conduct. 	The
District 	had not 	adopted a policy 	concerning 	the 	political
activities 	of 	nonemployees 	on school 	property. 	Cheek also 	felt
that 	the 	sign on Hoffman's 	truck was 	not as 	objectionable as
Anderson's because 	it usually was parked at 	the 	opposite 	end of
the parking 	lot 	from where Anderson's 	truck had been parked. 	No
action was 	taken with 	respect 	to Hoffman's 	truck.
On October 	16, 	WTA wrote 	to Oliphant 	and the Trustees
asserting 	that 	the District's 	restrictions 	on employee political
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activity were unconstitutional. 	Specifically, 	WTA asserted that
school 	employees 	have the 	right 	to express 	their political
viewpoints 	to 	each other on school 	property, 	and that 	a 	school
district 	may not 	prohibit 	employees 	from wearing political
buttons 	on school 	grounds 	during noninstructional 	time, 	citing
L.A. 	Teachers Union v. 	L.A. City Bd. 	of Ed. 	(1969) 	71 Cal.2d 551
[78 Cal.Rptr. 	723] 	(L.A. 	Teachers) 	and California Teachers Assn.
v. 	Governing Board 	(1996) 	45 	Cal.App.4th 1383 	[53 	Cal.Rptr.2d
474] 	(San Diego).
In response 	to WTA's 	complaint, 	the District 	issued an
October 	25 	memorandum to 	employees 	indicating 	that 	it 	had
reviewed 	its 	policy 	concerning 	employee 	political 	activities 	"in
light 	of 	a 	recent 	decision by the 	Court 	of Appeal," 	an apparent
reference 	to 	the San Diego 	case 	cited by WTA. 	The District
indicated that 	it 	had amended its policy, 	stating:
Staff 	members 	may distribute 	campaign
materials 	to each other 	either 	in person or
by depositing 	them in 	the 	staff 	mail 	boxes.
Such delivery may not 	interfere 	with 	the
delivery of 	the 	instructional 	program. 	Staff
may also wear 	campaign buttons 	during non-
instructional 	duties 	provided 	that 	they are
not visible 	to 	children.3
30n May 21, 	1997, 	the District again amended its policy
concerning political 	activities 	of 	employees. 	The policy
provides:
Pursuant 	to Education Code 	section 7055 	the
District 	does 	have 	the authority to 	restrict
political 	activities 	during work hours 	and 	on
school property. 	Further, 	the District has a
right 	and duty to dissociate 	itself 	from
political 	controversy. 	More 	specifically,
students 	have 	a 	right 	to attend school 	in an
atmosphere 	free 	of 	political 	controversy and
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the District 	has 	the 	authority 	to 	regulate
what 	is 	presented 	in the 	classroom and 	in
other 	instructional 	settings 	to 	ensure 	an
instructional 	setting 	free 	of 	political
controversy. 	To 	that 	end the 	following 	is
recognized:
1. 	School 	employees have 	the 	right 	to
express 	to 	each other 	their 	respective
political 	viewpoints 	on 	school 	property.
2. 	Such expression however shall 	not 	take
place 	during 	instructional 	settings 	and/or
curricular activities.
3. 	Political 	advocacy shall 	not 	occur
during 	instructional 	settings 	nor be 	in the
presence 	of 	instructional 	and 	or 	curricular
activities.
During the 	course of a typical 	school 	day, 	teachers
encounter students 	at various 	locations 	outside 	their 	classrooms.
Anderson, 	for example, 	is 	required to arrive thirty minutes prior
to 	the 	start 	of 	classes 	and uses 	that 	time 	as preparation time.
She 	remains 	after classes 	to assist 	students 	crossing Bodega
Highway adjacent 	to 	the 	school. 	She 	encounters 	students 	during
these periods, 	as well as during the 	recess 	and lunch periods.
Teachers 	also 	encounter 	students 	in 	the Wilson School 	parking 	lot
as 	they are 	dropped 	off 	and picked up by 	their parents, 	or arrive
at 	school 	on foot.
Wilson School 	has 	a 	staff 	lunchroom where 	teachers 	eat 	lunch
and take breaks. 	The lunchroom contains 	teacher mailboxes.
Students 	sometimes 	enter the 	lunchroom to pick up 	supplies, 	copy
documents, 	or contact teachers 	for miscellaneous reasons. 	Also,
the 	lunchroom is 	converted 	to a 	classroom almost 	daily 	for
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special 	classes 	or projects, 	but not during teacher lunch and
break periods.
Trustees, 	teachers 	and parents 	testified regarding 	their
concern 	for 	the 	child of 	a 	candidate 	not 	endorsed by WTA who was
in Anderson's 	classroom on October 11. 	Prior to October 1996,
WTA members 	discussed the potential 	consequences 	if 	campaign
signs 	were 	displayed 	on vehicles 	parked 	in 	the Wilson School
parking 	lot. 	WTA members 	specifically discussed 	the potential
impact 	of 	such signs 	on children whose parents were 	candidates.
WTA concluded 	that 	such 	campaign activity was 	appropriate 	if 	kept
out 	of 	the 	classroom. 	In this 	connection, 	WTA assumed that
candidates 	would 	explain 	the nature 	of 	political 	campaigns 	to
their children. 	During 	the 	course 	of 	the Trustees 	election
campaign, 	signs 	endorsing various 	candidates were widely
displayed 	throughout 	the 	community, 	including on 	streets 	adjacent
to Wilson School.
At about 	the 	time of 	the 	incident 	involving 	the 	sign on
Anderson's 	truck, 	WTA was 	in the process 	of printing 	campaign
buttons 	in the 	shape and size 	of a business 	card. 	Like 	the 	sign
on Anderson's 	truck, 	the buttons 	indicated WTA's 	endorsement 	of
Edwards, 	Gravesen and Rivera, 	and urged people 	to vote. 	However,
the buttons 	were never worn. 	Pending 	the 	outcome 	of WTA's
objection to 	the District's political 	activity restrictions, 	WTA
decided to 	forego using 	the buttons 	as part 	of 	its 	campaign. 	As
indicated above, 	the District 	issued a 	revised policy on
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October 25. 	That policy permitted 	teachers 	to wear campaign
buttons 	during noninstructional 	duties, 	provided they were not
visible 	to 	children.
On October 31, 	WTA filed the 	instant unfair practice 	charge
alleging 	that 	the 	District 	interfered with 	individual 	employee
and WTA rights 	to engage 	in the activities 	of 	an employee
organization by prohibiting union members 	from posting union-
sponsored 	campaign 	signs 	on 	their vehicles 	while parked 	in 	the
school 	parking 	lot, 	and by prohibiting union members 	from wearing
union-sponsored 	campaign buttons 	which 	could be visible 	to
children, 	including during noninstructional 	time.
On December 30, 	the 	PERB Office of 	the General 	Counsel
issued a 	complaint 	alleging 	that 	the 	District 	interfered with
protected rights 	in violation of 	EERA section 3543.5(a) 	and 	(b)
when 	it 	ordered Anderson 	to 	remove 	the 	campaign 	sign 	from her
truck or move 	the 	truck off 	of 	school 	property; 	and when 	it
issued 	the 	October 	25 	policy prohibiting 	employees 	from wearing
campaign buttons 	during noninstructional 	time 	if 	they might 	be
visible 	to students.
On June 2, 	1997, 	the ALJ granted WTA's motion to amend the
complaint. 	The 	amendment 	added 	the 	allegation 	that 	by ordering
Anderson 	to 	remove 	the 	campaign 	sign 	from her 	truck or 	remove 	it
from school 	property, 	the District 	discriminated against 	her 	for
her protected 	conduct. 	The 	amendment 	also added 	the 	allegation
that 	by allowing Hoffman 	to park her vehicle 	on 	school 	property
displaying a 	similar 	campaign sign, 	the District 	discriminated
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against 	bargaining unit 	members 	and 	interfered with 	their
protected 	rights. 	These actions were allegedly in violation of
EERA section 3543.5(a) 	and 	(b).
DISCUSSION
PERB 	Jurisdiction
Among 	the District's 	responses 	to 	the 	complaint 	is 	the
argument 	that 	this 	case 	involves 	a dispute 	over 	the District's
authority under 	the 	Education Code 	to 	regulate political
activities 	of 	employees. 	That 	authority 	is 	derived 	from the
following 	Education Code 	sections:
7050. 	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.
7052. 	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.
7054. 	(a) 	No school district or community
college district funds, 	services, 	supplies,
or equipment 	shall 	be used 	for the purpose 	of
urging 	the 	support 	or defeat 	of 	any ballot
measure or candidate, 	including, 	but not
limited to, 	any candidate 	for election to the
governing board 	of 	the 	district.
7055. 	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.
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The District 	contends 	that 	the 	express 	terms 	of 	Education Code
section 	7050 	supersede 	the 	EERA and thereby divest 	PERB 	of
jurisdiction in this 	case.
As 	the 	expert 	administrative 	agency established by 	the
Legislature 	to 	administer 	collective 	bargaining 	in 	California's
public 	education systems, 	PERB has 	exclusive 	initial 	jurisdiction
over conduct 	that arguably violates 	EERA. 	(EERA sec. 	3541.5;
San Diego Teachers Assn. 	v. 	Superior Court 	(1979) 	24 	Cal.3d l
[154 Cal.Rptr. 	893]; 	El Rancho Unified School Dist, v. 	National
Education Assn. 	(1983) 	33 Cal.3d 946 	[192 Cal.Rptr. 	123];
San Jose Teachers Assn. 	v. 	Superior Court 	(1985) 	38 	Cal.3d 839
[215 Cal.Rptr. 	250] 	vac. 	on other grounds 475 U.S. 	1063.) 	While
PERB may not 	enforce 	the 	Education Code, 	the Board may interpret
the 	Education Code 	to 	carry out 	its 	duty to administer EERA.
(San Bernardino 	City Unified School 	District 	(1989) 	PERB Decision
No. 	723; 	Whisman Elementary School District 	(1991) 	PERB Decision
No. 	868; 	Barstow Unified School District 	(1997) 	PERB Decision
No. 	1138b.) 	When allegedly unlawful 	conduct arguably 	implicates
both 	the 	Education Code 	and EERA, 	the 	Board may determine whether
the action constitutes an unfair practice. 	(Oxnard School
District 	(Gorcey and Tripp) 	(1988) 	PERB Decision No. 	667.) 	In
such 	cases, 	the Board seeks 	an 	interpretation that 	harmonizes 	the
purposes 	underlying EERA with 	the 	Education Code provisions.
(San Mateo City School Dist, 	v. 	Public Employment Relations Bd.
(1983) 	33 Cal.3d 850 	[191 Cal.Rptr. 	800] 	(San Mateo).)
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The 	Education 	Code 	sections 	cited above 	clearly 	indicate
that 	their provisions 	supersede 	the provisions 	found 	"in 	the
general 	law of 	the 	state." 	Education Code 	section 	7055 	provides
that 	a 	school 	district 	governing board may 	regulate 	the 	political
activity of 	employees during working hours, 	and political
activities on the premises of 	the district. 	However, 	these
Education Code provisions 	do not 	lead 	to 	the 	conclusion 	that 	PERB
is 	without 	jurisdiction 	to 	consider an unfair practice 	charge
alleging 	unlawful 	interference 	with 	EERA rights 	which may 	involve
political activities of employees. 	Instead, 	under the precedent
cited above, 	PERB 	is 	charged with the 	exclusive 	initial
jurisdiction 	to 	consider 	the 	alleged unfair practice while
harmonizing 	the purposes 	of 	EERA with 	those 	of 	the 	Education Code
provisions. 	Those 	include 	the 	EERA purpose 	of promoting 	improved
employer-employee 	relations 	in California 	schools 	through a
system of collective bargaining 	(EERA sec. 	3540), 	and the
Education 	Code purpose 	of 	dissociating California 	schools 	from
political 	controversy 	(Education Code sec. 	7050 et seq.).
Consequently, 	the District's 	assertion that pursuant 	to
Education Code 	section 7050 	PERB 	is without 	jurisdiction to
consider WTA's 	charge 	that 	the District's 	conduct violated EERA,
is 	rejected.
In a 	related argument, 	the District asserts 	that 	this 	case
involves 	a dispute over constitutional 	free 	speech rights, 	and
accordingly, 	is beyond PERB's purview and jurisdiction. 	It 	is
well 	settled 	that 	PERB may 	construe 	EERA in 	light 	of
14

constitutional precedent. 	(Cumero v. 	Public Employment Relations
Bd. 	(1989) 	49 Cal.3d 575, 	583 	[262 Cal.Rptr. 46]; Richmond
Unified 	School 	District/Simi 	Valley Unified 	School 	District
(1979) 	PERB Decision No. 	99 at p. 	16 	(Richmond/Simi Valley).)
The mere 	fact 	that 	constitutional 	rights may be 	implicated or
have 	some bearing on this 	dispute 	is 	not 	in and of 	itself
sufficient 	to divest 	PERB 	of 	jurisdiction 	to 	consider WTA's
allegations 	that 	the District's 	conduct 	violated EERA.
Accordingly, 	the Board must 	consider WTA's 	allegations
involving 	the District's 	conduct 	involving 	the 	display of
Anderson's 	campaign sign, 	and the 	October 25 	policy concerning
the wearing 	of political buttons by employees.
Campaign 	Sign Allegations
WTA asserts 	that 	the District's 	actions with 	regard 	to 	the
campaign 	sign 	on Anderson's 	truck unlawfully 	interfered with
EERA-protected rights. 	To establish unlawful 	interference, 	the
charging party must 	show that 	the 	employer's 	conduct 	tends 	to 	or
does 	result 	in harm to protected employee 	rights. 	If 	the harm is
slight 	and 	the 	employer's 	conduct 	is 	justified based on
operational 	necessity, 	the 	competing 	interests 	of 	the 	employer
and employee are balanced to 	resolve 	the 	charge. 	If 	the harm is
inherently destructive 	of protected employee 	rights, 	the
employer's 	conduct 	is 	excused only by showing 	that 	it 	resulted
from circumstances 	beyond 	the 	employer's 	control 	and no
alternative 	course 	of action was available. 	(Carlsbad Unified
School District 	(1979) 	PERB Decision No. 	89, 	at pp. 	10-11
15

(Carlsbad); 	see also Novato Unified School District 	(1982) 	PERB
Decision No. 	210.)
EERA gives 	employees 	the 	right 	to participate 	in 	employee
organization activities 	(EERA sec. 	3543), 	and gives employee
organizations 	the 	right 	to 	represent 	their members 	with public
school employers 	(EERA sec. 	3543.1(a)). 	Subject to reasonable
regulation, 	employee organizations also have the 	right 	of access
to areas 	in which employees work, 	and the 	right 	to use bulletin
boards, 	mailboxes and other means of 	communication. 	(EERA sec.
3543.1(b).) 	These 	rights 	are provided to employees 	and employee
organizations 	for the purpose 	of 	representation 	in matters 	of
employer-employee 	relations. 	WTA alleges 	that 	the District's
conduct 	with 	regard 	to 	the 	campaign 	sign unlawfully 	interfered
with these 	rights.
Consideration 	of 	WTA's 	allegation begins 	with an 	examination
of 	the 	conduct 	at 	issue 	in this 	case. 	Anderson and WTA displayed
a 	large 	campaign 	sign on her private vehicle parked 	in 	the Wilson
School parking 	lot. 	The 	sign communicated WTA's political
support 	of 	certain 	candidates 	in the 	election 	for the District's
Board of 	Trustees. 	It 	is apparent 	that a large sign attached to
a vehicle 	and parked 	in a 	school 	parking 	lot 	will 	communicate 	its
message 	to all who observe 	it. 	As Anderson testified, 	the 	sign
was 	intended 	to 	influence voters 	and make 	a 	statement 	to 	the
Trustees 	and the 	community. 	This 	fact 	is 	critical 	in considering
the allegation of 	interference with EERA-protected rights. 	The
sign displayed by Anderson and WTA was 	part 	of 	a political
16

campaign to 	influence voters 	in the upcoming school 	board
election. 	The 	campaign sign was 	not 	simply a 	communication
between employees 	and their 	employee 	organization at 	the
worksite.
The 	Board has 	determined 	that 	some political 	activities 	of
employees 	and 	employee 	organizations 	constitute 	conduct 	protected
by 	the 	statutes 	administered by 	PERB. 	In Richmond/Simi Valley,
the 	Board 	observed:
School 	employees 	and 	employee 	organizations
have a 	right 	to 	communicate at 	the worksite,
free 	from employer restriction, 	about
specific 	terms 	and 	conditions 	of 	employment
as well 	as matters 	of more general political,
social 	or economic 	concern to employees. 	[At
p. 24.]
And in San Ramon Valley Unified School 	District 	(19 82) 	PERB
Decision No. 	254, 	the Board found the employer's 	refusal 	to
distribute 	a union newsletter 	through 	the 	internal 	mail 	system
because 	the 	newsletter 	included a political 	message 	concerning 	a
statewide ballot 	initiative 	to be unlawful. 	These 	cases 	confirm
that 	the 	rights 	of 	employees 	and employee 	organizations 	to
communicate with each other at 	the worksite 	include 	the 	right 	to
communicate with each 	other 	concerning political 	issues.
Private sector cases also recognize these rights. 	In
Eastex, 	Incorporated v. 	National 	Labor Relations Board 	(1978)
437 U.S. 	556 	[98 S.Ct. 	2505] 	(Eastex), 	the United States Supreme
Court 	found a union's 	distribution of 	a newsletter 	to 	employees
which urged political 	action 	to be protected 	conduct 	under 	the
National 	Labor Relations Act 	(NLRA). 	But 	there are limits 	to
17

these rights described in these cases as well. 	For example, 	the
court in Eastex. 	at pp. 	567-568, 	held that the relationship
between 	the 	political 	activity and 	the 	employment 	relationship
could be 	so attenuated as 	to 	lose 	its protection. 	And 	in Local
174. 	International Union, 	United Automobile. 	Aerospace and
Agricultural 	Implement Workers 	of America v. 	National 	Labor
Relations Board 	(1981) 	645 F.2d 1151 	[207 App.D.C. 	226], 	the
National 	Labor Relations 	Board 	found 	no protection 	for political
activity which was 	not 	sufficiently 	related 	to 	the 	employment
interests of employees.
The 	cases 	in which political 	communication has 	been 	found 	to
be 	protected 	conduct 	have 	typically 	involved 	internal
communication between employees, 	or between employees 	and their
employee 	organization, 	and have 	often involved use 	of 	a union
newsletter or employer internal mail 	system. 	None 	of 	these
cases, 	however, 	involves conduct similar to the instant case, 	in
which an 	employee 	and 	employee 	organization displayed 	a 	large
sign on 	the 	employer's premises 	as part 	of a political 	campaign
to 	influence voters 	in an upcoming election 	for public 	office.
The Board 	is 	aware 	of no 	case 	in which a 	similar type 	of
political 	campaign 	activity has 	been 	found 	to be 	protected under
either the 	EERA or the NLRA. 	Accordingly, 	the Board concludes
that 	the 	display by Anderson and WTA of 	the 	large political
campaign 	sign 	in the Wilson School 	parking 	lot was 	not 	EERA-
protected 	conduct 	either as 	employee 	participation 	in 	an 	employee
organization, 	or employee organization representation of 	employees.
18

But 	even assuming 	for purposes 	of 	applying 	the 	Board's
Carlsbad standard, 	that 	the display of 	the 	campaign sign 	involved
protected activity, 	unlawful 	interference 	with EERA-protected
rights 	has 	not been established 	in this 	case. 	Any harm which
resulted 	from the 	District's 	action prohibiting 	the 	display 	of
the 	campaign 	sign by Anderson and WTA was 	slight. 	Anderson was
instructed to 	remove 	the 	sign from the vehicle 	or move 	it 	off 	of
school property, 	but 	she and WTA retained the ability to display
the 	campaign 	sign on her vehicle anywhere 	other 	than 	on 	school
property. 	Also, 	since all 	seven WTA members worked at Wilson
School, 	communication between them and WTA on the 	subject 	of
support 	for 	certain 	candidates 	in 	the 	school 	board election did
not 	require 	or 	rely upon 	the 	display 	of 	the 	large 	campaign 	sign
on school grounds. 	Furthermore, 	following WTA's 	complaint about
the District's 	action, 	the District 	issued an October 25
memorandum which 	recognized 	the 	right 	of 	employees 	to 	distribute
campaign materials 	to each other at 	school.
Under Carlsbad, 	if 	the harm to protected rights 	is 	slight,
the Board examines 	the employer's 	conduct 	to determine 	if 	it was
justified based on operational 	necessity. 	There 	is 	ample
justification here. 	As noted above, 	when a case presents 	conduct
implicating both EERA and the 	Education Code, 	the 	Board 	seeks 	an
interpretation which 	is 	consistent with the purposes 	of 	their
provisions. 	(San Mateo.) 	The purpose of 	Education Code 	section
7050 	et 	seq. 	is 	to 	insulate 	schools 	from involvement 	in political
controversy. 	Consequently, 	Education Code 	section 7054(a)
19

prohibits 	the use 	of 	school 	district property to 	support 	or
defeat 	any 	candidate 	for election to a 	school 	board. 	And
Education Code 	section 7055(a) 	provides 	that 	school 	boards may
establish rules 	governing 	the political 	activities 	of 	employees
during working hours. 	In fact, 	the District had maintained a
policy 	since 	at 	least 	January 	1992 	designed 	to prevent 	its
involvement 	in political 	campaigns. 	Clearly, 	there 	is 	strong
justification 	for action by 	the District 	to prohibit 	employees
from displaying 	large political 	campaign 	signs 	on 	school 	property
such as 	the 	one 	on Anderson's 	truck.
The 	Carlsbad 	standard 	requires 	the 	competing 	interests 	of
the 	employer and employee 	to be balanced 	to 	resolve 	this 	dispute.
WTA points 	to 	L.A. 	Teachers 	and San Diego 	to demonstrate 	that 	the
interests 	of 	employees 	outweigh those 	of 	the employer with regard
to the 	type 	of political 	activities 	involved here. 	But 	a 	closer
review of 	those 	cases 	reveals 	that 	they do not 	lend support 	to
WTA's assertion. 	In L.A. 	Teachers, 	the court held that 	teachers
do not 	surrender 	their constitutional 	rights 	at 	the 	schoolhouse
gate. 	Specifically, 	the 	court 	ruled that 	teachers have 	the
constitutional 	right 	to 	circulate 	among 	themselves 	a petition
urging political 	action, 	provided it 	is done 	in areas 	such as
lunchrooms 	and 	faculty rooms, 	apart 	from students 	and 	classes,
during non-duty periods. 	The 	San Diego 	court balanced this
constitutional 	right 	against 	a 	school 	district's 	power under 	the
Education Code 	to 	regulate 	the political 	activities 	of 	its
employees. 	In striking that balance, 	the court noted that a
20

district's 	authority 	to 	regulate political 	speech 	is 	much greater
if members 	of 	the public might 	reasonably perceive 	it 	to bear the
imprimatur of 	the 	school. 	(Hazelwood School District v.
Kuhlmeier 	(1989) 	484 U.S. 	260, 	270, 	217 	[98 L.Ed.2d 592]
(Kuhlmeier).) 	A school 	retains 	the 	authority 	to ban 	speech which
might 	be 	perceived as 	anything 	other 	than neutral 	on matters 	of
political 	controversy. 	(Id.) 	Thus, 	the San Diego court 	sought-
to 	determine 	"under what 	circumstances 	political 	activity by 	the
district's 	employees 	falls within a district's 	power 	to
dissociate 	itself 	from political 	controversy."
With 	regard 	to 	the 	classroom and 	other 	instructional
activities 	of 	employees, 	the San Diego court held 	that 	a district
has 	the power and authority 	to 	restrict political 	activity by
employees 	in those 	settings. 	Turning 	to noninstructional
settings, 	the 	court noted that under L.A. 	Teachers 	school
employees 	have 	the 	right 	to 	express 	their political 	views 	to 	each
other on 	school 	property. 	The 	court 	in San Diego 	concluded:
. 	. 	. 	the school's ban on political advocacy
cannot 	be 	enforced 	in noninstructional
settings. 	[At p. 	1392.]
But 	in reaching this 	conclusion, 	the 	court 	emphasized that 	it
applied to employees' 	expression in noninstructional 	settings 	of
their political viewpoints 	to 	each other. 	It pointedly did not
encompass 	the 	expression of political views 	to others. 	The 	court
stated:
The 	relationship between 	coemployees 	has 	none
of 	the 	elements 	of power and 	influence which
exist 	between 	elementary 	and 	secondary 	school
students and their instructors. 	Thus when
21

teachers 	and 	other district 	employees 	express
their political views 	to each other, 	there is
very 	little 	risk their views 	will 	be 	unduly
influential 	and 	thereby 	implicitly attributed
to the school 	district. 	[Id.]
Conversely, 	when school 	district 	employees 	express 	their
political views 	to 	students 	or nonemployees 	on school 	property,
there 	is 	a much greater risk that 	those views will 	be attributed
to the 	school 	district, 	thereby implicating the district's 	right
to 	dissociate 	itself 	from political 	controversy by 	regulating
that 	employee 	conduct.
Returning to the facts 	of 	this 	case, 	Anderson and WTA
displayed 	on 	school 	property a 	large 	political 	campaign 	sign
intended 	to 	influence voters 	in 	the upcoming 	school 	board
election. 	Clearly, 	this was not an expression by employees 	to
each 	other 	in a noninstructional 	setting 	of 	their political
viewpoints 	of 	the 	type described by the 	San Diego 	court. 	The
District 	received 	several 	complaints 	from parents 	concerned 	that
the 	display 	of 	the 	sign 	constituted an 	inappropriate political
activity on school 	grounds. 	The District 	was 	also 	concerned
because 	of 	the 	nature 	of 	the 	teacher-student 	relationship between
Anderson and her sixth grade 	class. 	Under these 	circumstances,
the District's 	action to prohibit 	the display of 	the 	sign appears
consistent 	with 	the 	court's 	description 	of 	the District's
authority 	to 	restrict 	employee 	conduct 	in 	order 	to dissociate
itself 	from political 	controversy. 	As 	the 	court noted, 	the
District 	has 	the authority 	to ban 	speech which might 	be perceived
-
22

as 	anything 	other 	than neutral 	on matters 	of political
controversy. 	(Kuhlmeier.)
Balancing the 	competing interests at work here, 	it 	is 	clear
that 	these 	important 	interests 	of 	the District vastly outweigh
any 	interest 	of 	Anderson and WTA which arguably would be 	served
by the display of 	a 	large political 	campaign sign on school
property. 	Therefore, 	the Board concludes 	that, 	by prohibiting
Anderson and WTA 	from displaying 	the 	political 	campaign 	sign 	on
school 	grounds, 	the District 	did not unlawfully 	interfere with
Anderson's 	EERA-protected 	right 	to participate 	in an 	employee
organization, 	or WTA's right 	to represent employees, 	and the
allegations 	that 	it 	did so are dismissed.
The June 2, 	1997, 	amendment to the complaint in this 	case
added 	the 	allegation 	that 	the District's 	conduct 	with regard 	to
Anderson's 	campaign 	sign also 	constituted unlawful
discrimination. 	To establish unlawful discrimination, 	the
charging party must 	show that 	the 	employee 	engaged 	in protected
activity of 	which the 	employer was 	aware, 	and that 	the 	employer
took adverse 	action against 	the 	employee because 	of 	that
protected activity. 	(Novato.) 	As noted above, 	the display by
Anderson and WTA of 	the 	large political 	campaign 	sign 	in 	the
Wilson School 	parking 	lot 	was 	not 	EERA-protected 	conduct.
Moreover, 	WTA acknowledges 	in its 	response 	to 	the District's
exceptions 	that 	it 	did not present 	an argument 	in support 	of 	an
EERA violation based 	on a 	theory of 	discrimination. 	Accordingly,
this allegation is 	also dismissed.
23

It 	has 	also been alleged 	that 	the District violated EERA by
interfering with WTA's 	rights 	of 	access 	and 	communication when 	it
ordered 	the 	removal 	of 	the 	campaign sign. 	According 	to 	this
allegation, 	the 	campaign sign 	constituted a 	form of 	communication
between WTA and employees 	on a matter of 	general 	interest. 	While
it 	is 	clear that 	the 	campaign sign was 	displayed primarily to
influence voters, 	it arguably also 	communicated its message 	to
employees. 	Accordingly, 	the Board will 	consider this allegation.
EERA provides 	employee 	organizations 	with 	the 	right 	of
access 	to 	employees 	at work and the 	right 	to use bulletin boards,
mailboxes 	and other means 	to 	communicate with them, 	subject 	to
reasonable regulation 	(EERA sec. 	3543.1(b)). 	However, 	the right
to utilize 	"other means 	of 	communication" 	does 	not provide 	an
employee 	organization with access 	to 	every possible means 	of
communication. 	(Regents 	of University of 	California v. 	Public
Employment Relations Bd. 	(1986) 	177 Cal.App.3d 648 	[223 	Cal.Rptr.
127] (Regents) .4)
The 	instant 	case 	involves 	a medium not 	typically utilized by
an employee organization, 	or the District 	for that matter, 	to
communicate 	- 	a 	large 	sign displayed on a 	truck parked 	in a
school parking 	lot. 	In order to determine 	that 	such an unusual
medium is 	an EERA-protected 	"other means 	of 	communication" 	it
must be 	shown that 	the usual means 	of 	communication available 	to
4This 	case was 	decided under 	the 	Higher Education Employer-
Employee Relations Act 	(HEERA) 	which 	is 	codified at Government
Code 	section 3560 	et 	seq. 	HEERA section 3568 	provides 	employee
organizations 	with access 	and 	communication 	rights 	which are
nearly identical 	to 	those 	included in EERA section 3543.1(b).
24

the 	employee 	organization are 	ineffective 	or unreasonably
difficult. 	(Sierra Sands Unified School District 	(1993) 	PERB
Decision No. 	977 	(Sierra Sands).) 	Clearly, 	that has not been
shown here. 	Wilson School 	staff 	have use 	of a lunchroom which
contains 	teacher mailboxes. 	The October 25 memorandum sent by
the District 	to 	employees 	stated that 	they 	could 	"distribute
campaign materials 	to each other either 	in person or by
depositing them in the staff mail boxes." 	Given these 	facts, 	and
the 	fact 	that 	all WTA members were 	employed at Wilson School, 	the
Board concludes 	that 	it 	has 	not been shown that 	the usual means
available 	to WTA to 	communicate with 	employees 	were 	either
ineffective or unreasonably difficult. 	Therefore, 	the medium
which was 	used by WTA 	- 	the display of 	a 	large 	sign on a 	truck 	in
the 	school parking lot 	- 	was not an EERA-protected other means 	of
communication.
The 	Board has 	also 	held 	that 	an employee 	organization 	can
gain access 	rights 	which would not 	otherwise be available 	when
the 	employer's 	policy denying access 	is 	discriminatory on 	its
face 	or as applied. 	(Sierra Sands.) 	The policy in effect 	on
October 	11, 	when Anderson displayed the 	campaign sign at Wilson
School, 	regulated the political 	activities 	of District 	employees
on school 	property. 	The District's 	administrative 	regulation
prohibited 	employees 	from posting 	or 	distributing 	campaign
materials on school property. 	The District, 	on October 25,
amended 	the policy 	to 	indicate 	that 	employees 	could distribute
campaign materials 	directly 	to 	each other 	or through use 	of 	staff
25

mailboxes, 	provided there was no 	interference with the
instructional 	program. 	It 	does 	not 	appear that 	these policies
are discriminatory as written.
However, 	after Anderson was 	directed to remove 	the 	campaign
sign from District property, 	Hoffman, 	a parent volunteer,
displayed a 	similar 	sign on her vehicle parked at Wilson School.
No action was 	taken by the District 	with 	respect 	to Hoffman's
campaign sign. 	The 	Board must 	determine whether the District's
failure 	to prohibit 	Hoffman 	from displaying 	a 	campaign 	sign
constitutes 	a 	discriminatory application 	of 	its 	policy pursuant
to Sierra Sands.
The 	District 	had 	no 	policy 	specifically addressing 	political
activities by nonemployees 	on school 	grounds. 	The 	record
contains 	no 	indication that 	the District 	applied 	the policy
regarding employee political activity inconsistently. 	Also, 	the
District 	did not 	discriminate 	based 	on 	the viewpoint 	expressed 	in
the 	sign being displayed, 	since both Anderson's 	and Hoffman's
signs 	indicated 	support 	for 	the 	same 	school 	board 	candidates.
The primary 	reason Hoffman was 	not 	instructed by the District 	to
remove 	the 	campaign sign was 	that 	she was 	a parent volunteer and
not a District 	employee, 	and the District was 	either uncertain of
its 	authority 	or unwilling 	to 	exercise 	it with 	respect 	to a
parent volunteer. 	Given 	the District's 	authority under Education
Code 	section 7055(b) 	to regulate political 	activities 	on its
premises, 	it may have been incorrect 	if 	it believed that 	it 	could
not 	order Hoffman to 	remove 	the 	sign. 	But 	departures 	from a
26

legitimate 	policy 	do not 	necessarily 	constitute 	discriminatory
application preventing 	the 	employer 	from enforcing 	that 	policy.
(Serv-Air Inc. 	v. 	NLRB 	(10th Cir. 	1968) 	395 	F.2d 557 	[67
LRRM 2337]; 	and INS v. 	FLRA. 	et al. 	(1987) 	855 F.2d 1454
[129 LRRM 2256]; 	Regents.) 	Consequently, 	the District's 	inaction
with 	regard 	to 	Hoffman's 	campaign 	sign does 	not 	constitute
discriminatory application 	of 	a policy as 	described 	in 	Sierra
Sands. 	and does 	not 	result 	in WTA obtaining access 	rights
otherwise not 	available 	to 	it.
The 	Board 	concludes 	that 	the District 	did not 	interfere with
WTA's 	rights 	to access and communicate with employees, 	guaranteed
by EERA section 3543.l(b), 	when it 	ordered Anderson to remove the
campaign 	sign 	from school 	property.
The June 2, 	1997, 	amendment to the complaint 	in this 	case
added 	the 	allegation 	that 	the 	District 	unlawfully 	discriminated
against 	bargaining unit 	members 	and 	interfered with 	EERA-
protected 	rights 	when 	it 	allowed Hoffman 	to park her 	truck
carrying a political 	campaign sign on school property. 	As 	noted
above, 	WTA did not present 	arguments 	in support 	of 	these alleged
violations. 	Therefore, 	WTA has not met 	its burden under the
Board's 	Carlsbad and Novato 	standards 	and this 	allegation 	is 	also
dismissed.
Campaign 	Button Allegation
It 	is 	also alleged that 	the policy described 	in the
District's 	October 	25 	memorandum unlawfully 	interfered with 	the
EERA-protected 	right 	to wear 	campaign buttons.
27

As 	noted, 	employees 	and employee 	organizations 	have 	the
right 	to 	communicate with 	each other at 	the worksite 	about
matters 	of general 	concern, 	including political matters. 	(L.A.
Teachers: 	Richmond/Simi Valley.) 	The District also has 	the
authority under 	the 	Education Code 	to act 	to dissociate 	itself
from political 	controversy. 	In San Diego, 	the 	court 	examined the
limits 	on 	that 	authority with 	regards 	to 	the wearing 	of 	political
buttons by employees. 	The 	court 	summarized 	its 	ruling:
We 	find 	the district 	has 	the power to prevent
its 	employees 	from wearing political 	buttons
in 	its 	classrooms 	and when 	they are 	otherwise
engaged 	in providing 	instruction 	to 	the
district's 	students. 	On the 	other hand we
find 	the 	district 	has 	no 	such power when 	its
employees 	are not 	engaged 	in 	instructional
activities.
Considering the Board's policy in light 	of 	the 	court's 	ruling, 	it
is 	concluded that 	EERA protects 	the 	right 	of 	employees 	to
communicate with each other at 	the worksite 	on matters 	of 	general
concern by wearing political 	buttons 	when 	they are 	not 	engaged 	in
instructional 	activities.5
The District's 	October 25 	memorandum states 	the 	following
policy 	concerning political 	buttons:
5The 	Board does 	not 	conclude 	that 	this 	right 	is unlimited.
As 	noted below, 	there may be 	circumstances 	in which 	"the 	elements
of power and influence" 	between teachers and students, 	noted by
the San Diego court, 	are present 	in noninstructional 	settings.
Also, 	there may be 	circumstances 	in which members 	of 	the public
might 	reasonably perceive 	the wearing 	of 	political 	buttons 	by
employees 	engaged 	in noninstructional 	duties 	to bear 	the
imprimatur of 	the 	school. 	These 	circumstances 	could arguably
implicate 	the 	district's 	authority 	to 	regulate 	the 	employee
conduct. 	However, 	since 	such circumstances are not presented by
this 	case, 	the Board need not address 	this 	issue.
28

Staff 	may also wear 	campaign buttons 	during
non-instructional 	duties 	provided 	that 	they
are not visible 	to 	children.
WTA alleges 	that 	this policy amounts 	to 	an unlawful 	blanket 	ban
on 	the wearing 	of 	political 	buttons 	because 	there 	are virtually
no 	circumstances 	in which a button would not possibly be visible
to 	children at Wilson School 	during 	teacher noninstructional
time. 	For example, 	WTA asserts 	that 	students 	enter the Wilson
School 	employee 	lunchroom, 	and political 	buttons being worn by
teachers 	during 	their noninstructional 	time 	in 	that 	room would be
visible 	to 	those 	students 	and banned by 	the policy.
It 	should be noted that 	the 	San Diego 	court 	in the passage
cited above 	does 	not 	appear 	to 	regard 	instructional 	activities 	to
include 	only those which occur in the classroom. 	However, 	the
court 	does 	not 	discuss 	or define activities 	outside 	the 	classroom
during which 	employees 	"are 	otherwise 	engaged 	in providing
instruction" 	and during which a 	school 	district 	has 	the 	authority
to prohibit 	the wearing of political buttons. 	Therefore, 	the
determination 	of 	whether non-classroom duties 	involve
instructional 	or noninstructional 	activities must 	be made 	on a
case-by-case basis.
Under 	the 	Board's 	standard 	for determining unlawful
interference, 	the 	charging party bears 	the burden of
demonstrating 	that 	the 	employer's 	conduct 	tends 	to or does 	result
in harm to protected employee 	rights. 	(Carlsbad.) 	In this 	case,
WTA was 	printing 	campaign buttons 	indicating 	its 	endorsement 	of
certain school board candidates 	at 	the time 	of 	the 	campaign sign
29

incident 	discussed above. 	WTA objected 	to 	the District's 	action
concerning 	the 	campaign 	sign and decided not 	to use 	the political
buttons pending 	the 	outcome 	of 	that 	objection. 	Based on these
facts, 	the Board must determine whether it has been demonstrated
that 	the District's 	October 25 	policy harmed or 	tended 	to harm
EERA-protected 	rights.
For several 	reasons, 	the Board finds 	that 	there 	is
insufficient 	evidence 	to 	conclude 	that 	the District's 	action
harmed or tended to harm EERA-protected rights. 	First, 	the
October 25 	policy does 	not 	appear 	to 	represent 	a blanket 	ban
because by its 	own 	terms 	it 	acknowledges 	the 	right 	of 	employees
to wear political 	buttons 	during noninstructional 	time 	in an
apparent 	reference 	to the San Diego decision. 	Second, 	the
practical 	application 	of 	the 	arguably objectionable portion 	of
the policy stating 	that 	buttons 	may be worn 	"provided 	that 	they
are not visible 	to 	children" 	is 	simply not 	clear. 	For example,
it 	could be 	assumed 	that 	the policy would be applied 	to prohibit
teachers 	from wearing 	campaign buttons 	in 	their 	classrooms 	prior
to 	the beginning of 	class 	as 	students were assembling 	in the
room. 	However, 	whether the policy would be applied to prohibit
the wearing 	of 	campaign buttons 	during 	lunchtime 	in 	the 	employee
lunchroom because 	students 	might 	periodically have 	reason 	to
enter that 	room is 	not 	clear. 	Third, 	while 	the policy concerning
political 	activities 	by employees 	which 	the District 	adopted 	in
May 1997 	is not at 	issue here, 	the Board notes 	that 	it again
acknowledges 	the 	right 	of 	employees 	to express 	their political
30

viewpoints 	to 	each other provided 	they are 	not 	"presented 	in 	the
classroom and 	in other 	instructional 	settings." 	Since 	there 	are
no 	facts 	relating 	to 	the actual 	application of 	the District's
October 25 policy, 	the 	case-by-case determination of whether it
interfered with employees' 	right 	to 	communicate with each other
by wearing political 	buttons 	in noninstructional 	settings must 	be
based on 	conjecture and speculation. 	Under 	these 	circumstances,
the Board 	finds 	that 	there 	is 	insufficient 	evidence 	to 	conclude
that 	the District's 	policy, 	which advises 	employees 	that 	they may
wear political buttons 	in noninstructional 	settings, 	harmed or
tended to harm EERA-protected rights. 	Therefore, 	the allegation
that 	the policy 	constitutes 	unlawful 	interference 	in violation of
EERA section 3543.5(a) 	and 	(b) 	must be dismissed.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in 	Case
No. 	SF-CE-1918 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Member Amador's 	concurrence begins 	on page 	32.
Member Dyer's 	concurrence and dissent begins 	on page 	51.
31

AMADOR, 	Member, 	concurring: 	I concur with the result of
Chairman Caffrey's and Member Dyer's 	opinions; 	I 	too would
dismiss 	the unfair practice 	charge. 	However, 	my analysis differs
from theirs. 	I would dismiss 	this 	charge 	for two reasons. 	The
first 	is 	that, 	for the allegations 	that properly fall 	within the
Public Employment Relations Board's 	(PERB or Board) 	jurisdiction,
the Wilmar Teachers Association, 	CTA/NEA 	(WTA) 	has not proven a
key element 	of 	its prima facie 	interference 	case; 	namely, 	it has
failed to 	show that 	it was 	engaged 	in an activity that 	is
protected by the 	Educational 	Employment 	Relations Act 	(EERA) 	at
the 	time 	in question. 	Secondly, 	I am of 	the opinion that 	the
Wilmar Union Elementary School 	District's 	(District) 	actions were
justified under 	case 	law and the 	Education Code, 	and 	therefore
dismissal 	is appropriate.
BACKGROUND
The District 	consists 	of 	one elementary school, 	Wilson
School, 	which has 	an average daily attendance 	of 	approximately
250 	students. 	Wilson School has nine teachers, 	seven of whom
were members 	of 	the WTA at 	the 	time 	in question.
During 	the 	course of 	a 	typical 	school 	day at Wilson School,
teachers 	and 	students 	see 	each other 	frequently at various
locations, 	both in the classrooms and elsewhere. 	For example,
they often see 	each other before and after 	class, 	and a 	teacher
assists 	students 	in 	crossing Bodega Highway adjacent 	to 	the
school. 	Teachers also encounter students 	during 	recess 	and 	lunch
periods, 	as well 	as 	in the parking lot as 	they arrive at 	or leave
32

school. 	Wilson School 	has 	a 	lunchroom where 	teachers 	eat 	lunch
and take breaks. 	The 	lunchroom contains 	teacher mailboxes.
Students 	sometimes 	enter the 	lunchroom to pick up 	supplies, 	copy
documents, 	or contact teachers 	for miscellaneous 	reasons. 	Also,
the 	lunchroom 	is 	converted 	into a 	classroom almost 	daily 	for
special 	classes 	or projects.
At 	the 	time of 	the events 	in question, 	Kathleen Anderson
(Anderson) 	was 	a sixth-grade 	teacher at Wilson School. 	The WTA
decided to become active 	in the November 	19961 local 	school 	board
election and 	it 	appointed Anderson 	to head 	its 	organizing 	effort.
As 	one of 	the WTA's 	campaign activities, 	Anderson attached a
large 	sign 	(approximately two 	feet by eight 	feet) 	to 	the 	lumber
rack of 	her pickup 	truck. 	The 	sign 	indicated 	in block letters
that 	three named 	candidates2 were 	"ENDORSED BY WILMAR TEACHERS
ASSOCIATION," 	and urged people 	to 	"VOTE NOV. 	5."
At 	that 	time, 	the District had a policy and a 	regulation
in place 	regarding political 	activities by employees.3 There
1 Unless otherwise noted, 	all dates 	refer to 1996.
2The WTA endorsed candidates Bill 	Edwards 	(Edwards), 	Lisa
Gravesen 	(Gravesen) 	and Renee Rivera 	(Rivera).
3The policy 	in effect 	on 	the 	date 	of 	the 	challenged 	conduct
provided:
The Governing 	Board believes 	that 	district
employees 	have 	an obligation 	to prevent 	the
improper use of 	school 	time, 	materials 	or
facilities 	for political 	campaign purposes.
The 	Superintendent/principal 	shall 	provide
administrative 	regulations 	concerning
political 	activities 	on 	school 	property.
33

is 	no 	dispute 	that 	this 	policy and 	regulation applied 	to 	all
employees, 	including Anderson.
The Board respects 	the 	right 	of 	school
employees 	to engage 	in political 	activities
on their own time. 	Like other citizens, 	they
have 	the 	right 	to use 	the school 	for meetings
under the 	Civic 	Center Act. 	Such use 	shall
in no way 	interfere with 	the use 	of 	the
facilities 	for school purposes.
When engaging 	in political 	activities,
employees 	shall make 	it 	clear 	that 	they are
acting as 	individuals 	and not 	as
representatives 	of 	the district.
On October 11, 	Anderson drove her truck to Wilson School and
parked it 	in the 	school 	parking 	lot 	in a 	location where 	the 	sign
was 	plainly visible 	from her 	classroom and 	other parts 	of 	the
school.4 She 	testified 	that 	the purpose 	of 	the 	sign was 	to
provide 	"a visible 	thing 	for 	[WTA members] 	to know that we were
united, 	we were working 	for a common goal," 	and also to 	send a
statement 	to the school board, 	to the community, 	and to influence
voters.
After viewing 	the 	sign and 	discussing 	the matter with 	the
District's legal counsel, 	Randell Cheek 	(Cheek), 	the president of
the 	school 	board, 	concluded that 	the 	sign violated District
4Three 	school 	board 	candidates 	had 	children 	in Anderson's
class. 	The WTA only endorsed parents 	of 	two of 	those 	three
children.
34

- - -
- - - 	- -
policy.5 At 	about 	10:30 	a.m., 	Superintendent/Principal 	Lee
Oliphant 	(Oliphant) 	asked Anderson to 	step into 	the hall 	and
handed her a 	copy 	of 	a 	six-point 	regulation which 	implemented 	the
District's policy.6 Oliphant 	informed Anderson 	that 	she 	had 	to
either 	remove 	the 	sign 	from her 	truck 	or move 	the 	truck 	from
school 	property. 	During 	the 	lunch break, 	Anderson removed her
truck 	from District 	property.7
5Trustee 	Cheek 	testified at 	the 	administrative 	hearing 	in
this matter 	that 	the board decided political 	activities 	on 	campus
would be 	inappropriate. 	Because 	some 	students 	knew candidates,
were children of candidates, 	or were neighbors of 	candidates, 	the
board was 	concerned 	that 	political 	activity 	surrounding 	the
election might 	upset 	them. 	Cheek 	testified 	that 	"We weren't
wanting any 	leaflets 	or anything 	large 	on 	campus 	that 	would
distract 	from the 	educational 	process."
6This 	regulation provided:
Under no 	circumstances 	shall 	district
employees:
1. 	Conduct political activities 	on school
property during 	duty hours.
2. 	Solicit 	campaign support 	or 	contributions
on 	school 	property during duty hours.
3. 	Use school 	equipment 	for the 	reproduction
of 	campaign materials.
4. 	Post 	or distribute 	campaign materials 	on
school 	property.
5. 	Disseminate 	campaign materials 	through
the 	district mail 	service 	or place 	them in
staff mailboxes.
6. 	Permit 	the use of students 	to write,
address 	or distribute 	campaign materials.
(Emphasis 	added.)
7That 	same date, 	a memo 	from Cheek was placed 	in teacher
mailboxes. 	The memo 	restated 	the 	regulation pertaining 	to
political 	activities 	of 	employees 	and 	called for 	full 	compliance.
35

During 	this 	timeframe, 	the WTA was 	in the process 	of
printing 	campaign buttons 	in 	the 	shape 	and 	size 	of 	a business
card. 	The buttons 	also 	indicated that WTA endorsed Edwards,
Gravesen and Rivera 	for the 	school 	board, 	and urged readers 	of
the button to vote. 	However, 	the buttons were never worn.8
Procedural 	Background
The WTA 	filed an unfair practice 	charge 	on
October 31, 	alleging that 	the District's policies 	and conduct
interfered with protected 	rights.9 Following a 	formal 	hearing,
the ALJ rendered a proposed decision on October 22, 	1997, 	in
which 	he 	found 	that 	the 	District 	violated 	EERA with 	regard 	to
both 	the 	truck 	sign allegation and 	the 	campaign button
allegation. 	The 	case 	comes before 	the Board on exceptions 	filed
by 	the District.
8Shortly after the Anderson truck sign 	incident, 	the WTA
lodged a 	formal 	objection. 	Anderson said 	the WTA deferred using
the buttons 	as part 	of 	its 	campaign 	"until 	we 	found out what 	we
could and 	could not 	do."
9Three days before 	the 	formal 	hearing, 	the WTA moved to
amend 	the 	complaint 	to 	add a 	discrimination allegation based 	on
the District's 	failure 	to 	order a parent volunteer 	to move 	her
truck sign. 	The 	PERB administrative law judge 	(ALJ) 	granted the
motion, 	but 	stated that 	he did not 	consider the discrimination
theory 	in his 	proposed decision because 	the WTA did not 	argue 	in
its brief 	for an 	independent violation on that 	ground. 	However,
the ALJ 	did 	consider 	evidence 	regarding 	the 	parent's 	truck 	in
connection with 	the WTA's 	interference 	theory.
The net 	effect of 	this 	series 	of 	events 	is 	that 	the
discrimination 	claim has 	been abandoned and 	is 	not 	before 	the
Board on appeal. 	The 	only legal 	theory that 	is before 	the Board
for consideration 	is WTA's 	interference 	cause 	of 	action.
36

DISCUSSION
Scope 	of 	PERB Jurisdiction
This 	case presents a broad range of 	legal 	issues, 	including
some which are 	not 	ordinarily 	found 	in an unfair 	labor practice
charge before 	this 	Board. 	Resolution of 	the 	case 	requires 	the
Board 	to 	carefully 	identify which 	issues 	are properly within 	its
statutory 	jurisdiction and 	refrain 	from deciding 	those 	issues
which are more 	appropriately addressed 	elsewhere. 	PERB does 	not
issue 	advisory opinions.
It 	is well 	established that 	PERB has 	exclusive original
jurisdiction 	over 	conduct 	that 	arguably violates 	EERA. 	(EERA
sec. 	3541.5;10 San Diego Teachers Association v. 	Superior Court
(1979) 	24 Cal.3d 1 	[154 Cal.Rptr. 	893] 	(San Diego T A ) : 	El Rancho
Unified School 	District v. 	National 	Education Association 	(1983)
33 Cal.3d 946, 	953-960 	[192 Cal.Rptr. 	123] 	(El Rancho USD):
Barstow Unified School District 	(1997) 	PERB Decision No. 	1138b
(Barstow), 	p. 	13 	[District did not violate EERA by contracting
out 	pupil 	transportation 	services 	because 	that 	action was 	lawful
under 	the 	Education 	Code.].)
It 	is 	readily apparent 	that 	certain aspects 	of 	the WTA's
charge do not 	fall 	under the Board's 	jurisdiction. 	The Board
10EERA section 3541.5 provides, 	in part, 	that:
The 	initial 	determination as 	to whether 	the
charges 	of unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a matter within 	the 	exclusive
jurisdiction of 	the board.
37

assumes 	initial 	jurisdiction only 	over 	those allegations 	that
clearly assert 	that 	the 	District 	violated 	EERA.
Although 	the Association's 	charge 	contains 	numerous
allegations 	arising under EERA, 	the District argues 	that 	PERB 	is
the 	improper 	forum for this 	dispute. 	The District's 	position 	is
that 	the 	Board 	lacks 	the 	authority 	to 	resolve 	the 	dispute 	because
Education Code 	section 	7055 	expressly permits 	the District's
conduct.11 The District 	argues 	that 	disputes 	involving 	the
Education Code 	are more properly addressed 	in 	other 	forums.
Considering both parties' 	arguments, 	there is a tension
between the 	scope 	of 	the 	Education Code and that 	of 	the 	EERA.
This 	tension has 	jurisdictional 	implications 	for the Board, 	an
issue which has been addressed in a handful 	of prior cases.
Although PERB may not 	enforce 	the Education Code, 	it may
interpret 	the 	Education Code 	to 	carry out 	its 	duty 	to administer
EERA. 	(Barstow at p. 	13, 	citing San Bernardino City Unified
School District 	(1989) 	PERB Decision No. 	723; 	Whisman Elementary
School District 	(1991) 	PERB Decision No. 	868.) 	Although a school
employer may lawfully exercise 	Education Code 	rights, 	it may not
do 	so 	in a manner which violates 	EERA. 	When a violation of 	an
11That section 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.
38

EERA-protected right 	is 	alleged, 	PERB will 	assert 	jurisdiction
over 	the 	alleged EERA violation. 	(McFarland Unified School
District 	(1990) 	PERB Decision No. 	786 	(McFarland USD) 	[although
an 	employer may 	choose 	not 	to 	reelect 	a probationary 	teacher
under the Education Code, 	it may not 	exercise 	that 	right 	for
reasons 	unlawful 	under EERA].)
Applying these principles, 	this 	case 	is more easily resolved
by use of a two-part approach. 	First, 	because 	the 	charge
contains 	allegations 	that 	the District violated the 	EERA, 	the
Board 	takes 	initial 	jurisdiction 	to 	answer 	the 	threshold question
of 	whether 	the WTA was 	engaged 	in 	conduct 	that 	is 	protected by
EERA when the District 	took the actions 	at 	issue here. 	(EERA
sec. 	3541.5; 	San Diego TA; 	El Rancho USD; 	Barstow.) 	If not, 	the
Board's 	analysis 	ends 	and dismissal 	is 	required because 	further
review would exceed the boundaries 	of 	our jurisdiction. 	If, 	on
the other hand, 	the WTA is 	found to have 	engaged 	in 	conduct 	that
is protected by EERA, 	the Board retains 	jurisdiction over 	the
merits 	of 	the dispute, 	regardless 	of purported Education Code
violations. 	(Barstow.)
In this 	case, 	as 	in every interference 	case before 	the
Board, 	in order 	to prevail 	the 	charging party must 	first
establish a prima 	facie 	case 	demonstrating 	that 	the 	employer's
conduct 	tends 	to or does 	result 	in some harm to 	employee 	rights
protected under 	the 	EERA. 	(Carlsbad Unified School 	District
(1979) 	PERB Decision No. 	89; 	see also, 	Novato Unified School
District 	(1982) 	PERB Decision No. 	210.) 	The WTA and Anderson
39

assert 	that 	they 	engaged 	in 	conduct 	that 	is 	protected by 	EERA
sections 3543.5 (a) 	and 	(b) , 	and by section 3543. l(b).1 2
It 	is 	well 	established 	that 	public 	employees, 	acting 	in
their private 	capacity, 	possess 	various 	non-EERA based 	rights 	to
engage 	in numerous 	forms 	of political 	activity. 	(See, 	e.g.,
Labor Code section 1101 ;13 Article 	I, 	sec. 	2 (a) 	California
Constitution;14 1st Amendment, 	U.S. 	Constitution.15) 	The
12 Section 3543.1 (b) 	provides:
(b) 	Employee 	organizations 	shall 	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.
13 Labor 	Code 	section 	1101 	provides 	that:
No employer shall make, 	adopt, 	or enforce any
rule, 	regulation, 	or policy:
(a) 	Forbidding 	or preventing 	employees 	from
engaging 	or participating 	in politics 	or 	from
becoming 	candidates 	for public 	office.
(b) 	Controlling or directing, 	or tending 	to
control 	or 	direct 	the 	political 	activities 	or
affiliations 	of 	employees.
14 Article I, 	sec. 	2 (a) 	provides, 	in part, 	that:
Every person may 	freely 	speak, 	write 	and
publish 	his 	or 	her 	sentiments 	on 	all
subjects, 	being 	responsible 	for 	the 	abuse 	of
this 	right. 	A law may not 	restrain 	or
abridge 	liberty 	of 	speech 	or press.
15The 	First 	Amendment 	provides 	that:
40

Education 	Code 	also 	contains 	statutes 	specifically designed 	to
address political 	activities 	of 	school 	district 	employees 	and
officers. 	(See Part 5, 	Chapter 1, 	Art. 	2, 	Education Code
sections 7050-7057, 	added by Stats.1977, 	c. 	36, 	section 396.5,
operative April 	30, 	1977.) 	The article begins with this general
statement 	of 	legislative 	intent:
Congress 	shall 	make 	no 	law respecting an
establishment 	of 	religion, 	or prohibiting the
free 	exercise thereof; 	or abridging the
freedom of speech, 	or of the press; 	or the
right 	to 	the people peaceably to assemble,
and 	to petition 	the government 	for a 	redress
of grievances.
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.16
The 	Education Code 	gives 	broad protection 	to 	the political
activities 	of 	school 	officers 	and employees. 	Education Code
section 7052 	provides 	that:
Except 	as 	otherwise provided 	in 	this 	article,
or as 	necessary 	to meet 	requirements 	of
16In 	1995 	the 	legislature 	further amended several 	of 	the
sections within this 	article, 	and made 	the 	following
clarification:
[I]t is not the intent of the Legislature 	. 	.
. 	to restrict 	the political activities of
officers 	or employees 	of a school 	district 	.
. 	. 	except as provided in 	[this article] 	or
as may be 	necessary to meet 	specified
requirements of federal law. 	. 	. 	. The right
of 	speech of 	any member 	of 	a governing board
of 	a 	school 	district 	. . . 	or any employee
thereof 	is 	in no manner affected by this 	act.
(Section 1 of Stats.1995, 	c. 	879 	(S.B. 	82).)
41

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.
Other 	Education 	Code 	sections 	in 	that 	article 	impose 	clear
limitations 	on political 	activities 	by 	those persons.17 In
addition 	to 	regulating 	the 	form of 	permissible 	political
activity, 	the 	legislature 	also 	restricts 	the 	timing 	of 	such
activity. 	Certain political 	activities, 	such as 	fundraising, 	may
be 	completely banned 	during 	working 	hours.18
17It 	should be 	noted 	that 	the 	Education 	Code 	places
restrictions 	on 	the 	political 	activity 	of 	school 	district
management 	as 	well 	as 	employees. 	Although Education 	Code 	section
7055 	provides 	broad 	authority 	for 	a 	school 	district 	to 	regulate
the 	political 	activity 	of 	employees 	during working hours,
Education 	Code 	section 	7054 	provides 	that:
(a) 	No school district 	. 	. 	. 	funds,
services, 	supplies, 	or equipment 	shall be
used 	for 	the purpose 	of 	urging 	the 	support 	or
defeat 	of 	any ballot measure 	or candidate. 	.
18See 	Education 	Code 	section 	7056, 	which provides 	that:
(a) 	[The] 	soliciting or receiving 	[by school
district 	officers 	or employees 	of] 	political
funds 	or 	contributions 	to promote 	the 	support
or 	defeat 	of 	a ballot measure 	that 	would
affect 	the 	rate 	of pay, 	hours 	of work,
retirement, 	civil 	service, 	or other working
conditions 	of 	officers 	or 	employees 	of 	the
local agency 	. 	. 	. 	[is] 	prohibited during
working hours. 	. 	. 	.
(b) 	Nothing 	in 	this 	section 	shall 	be
construed 	to 	prohibit 	any 	recognized 	employee
organization or its officers, 	agents, 	and
representatives 	from 	soliciting 	or 	receiving
political 	funds 	or 	contributions 	from
employee members 	to promote 	the 	support 	or
defeat 	of 	any ballot 	measure 	on 	school
district property 	. 	. 	. 	during nonworking
time. 	As 	used 	in 	this 	subdivision.
42

'nonworking time' 	means 	time outside an
employee's working hours, 	whether before or
after 	school 	or during 	the 	employee's
luncheon period 	or 	other 	scheduled work
intermittency 	during 	the 	schoolday.
[Emphasis 	added.]
Although 	these 	non-EERA rights 	should not 	be 	ignored 	in 	our
analysis, 	the scope of those rights 	is not at 	issue here. 	As 	in
all 	interference 	cases brought under the EERA, 	this unfair
practice 	charge 	requires us 	to answer a different, 	narrower
question: 	whether 	the District 	interfered with 	rights 	guaranteed
to 	the WTA and Anderson by 	the 	EERA.
Here, 	Anderson and the WTA both claim that 	one purpose 	of
her 	truck 	sign was 	to exercise 	rights 	under EERA section
3543.l(b), 	and that 	the District 	interfered with those rights.
That section provides, 	in pertinent part, 	that:
Employee 	organizations 	shall 	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.
The 	District 	responds 	that 	any 	such 	rights 	were 	outweighed
by 	its 	duty 	to 	guarantee 	students 	a politically neutral 	school
environment.
The WTA is 	correct 	in noting 	that 	EERA section 	3543.l(b)
guarantees 	employee 	organizations 	a 	right 	to 	communicate
information to 	their members 	under 	certain circumstances. 	PERB
43

has 	reviewed numerous 	unfair practice 	charges 	involving 	attempts
by public 	employees 	or employee 	organizations 	to 	exercise 	those
rights.19
In the 	case at bar, 	the 	total 	number of 	fellow union members
with whom 	the WTA and Anderson purportedly 	sought 	to 	communicate
was 	six persons, 	all 	of whom were employed at 	the 	same 	small
school 	and who 	saw each other 	frequently. 	Comparing 	these 	facts
to 	those 	prior 	cases 	in which 	PERB has 	recognized 	the 	existence
of 	rights arising from EERA section 3543.1(b), 	I am simply not
persuaded 	that 	this 	case 	falls 	under 	the protection afforded by
that 	statute.
In a separate argument, 	the WTA alleges, 	and Anderson
testified, 	that 	a 	secondary purpose 	for the 	campaign sign was 	to
-
influence voters 	in 	the 	community 	regarding 	the 	school 	board
election. 	As discussed above, 	although other laws may protect
the WTA in its attempt 	to achieve 	this goal, 	such a right 	is 	not
found 	in 	the 	EERA or any 	other 	statute under PERB's 	jurisdiction.
Specifically, 	PERB has never held that 	the EERA guarantees
employee 	organizations 	or employees 	the 	right 	to 	communicate
campaign endorsements 	to 	the general public, 	when that
communication occurs 	on school property during 	the workday. 	The
19See, 	e.g., 	Richmond Unified School District/Simi Valley
Unified School District 	(1979) 	PERB Decision No. 	99, 	in which
the 	Board held 	that 	a 	school 	district 	could not 	lawfully alter
its 	longstanding practice 	of 	permitting 	the 	employee 	organization
access 	to 	the District's 	internal 	mail 	system for union
newsletters. 	The Board held that 	this 	denial 	of 	access
constituted an unreasonable 	regulation within 	the meaning 	of 	EERA
section 3 5 4 3 . K b ) . 	(Id. at p. 14).
44

result 	is 	that 	the WTA's 	interference allegations must be
dismissed because 	they lack a key element 	- - 	a showing of 	conduct
protected under 	the 	EERA.
Although 	this 	case 	is 	appropriately dismissed on 	EERA
grounds, 	case 	law also supports dismissing this 	charge. 	In
California Teachers Assn. 	v. 	Governing Board of 	San Diego Unified
School District 	(1996) 	45 	Cal.App.4th 1383 	[53 	Cal.Rptr.2d 474]
(CTA), 	the association brought a writ of mandate in state court,
challenging 	a 	school 	district's 	policy 	that 	prevented 	its
employees 	from wearing political 	buttons 	at 	work 	sites 	during
work hours. 	The 	court began by stating 	that 	Education Code
section 	7055 	plainly gives 	school 	districts 	the power to 	restrict
political 	speech during working hours. 	(Id. 	at p. 	1387.)
However, 	this power is not unfettered. 	The court noted that:
[U]nder our Constitution 	(t)eachers 	like
others, 	have the 	right 	to speak freely and
effectively on public questions 	. 	. 	. 	[t]hey
do not 	"shed" 	these rights 	"at 	the
schoolhouse gate." 	(L.A. 	Teachers Union v.
L.A. 	City Bd. 	of Ed. 	(1969) 	71 Cal.2d 551,
557-558 	[78 Cal.Rptr. 	723, 	455 P.2d 827]
(L.A. 	Teachers).) 	Thus 	in considering the
district's policy, 	'we must strike 	"a balance
between the 	interests of 	the teacher, 	as a
citizen, 	in commenting upon matters of public
concern and the 	interest 	of 	the State, 	as 	an
employer, 	in promoting the efficiency of 	the
public 	services 	it performs 	through its
employees."' 	[CTA at p. 	1387; 	citations
omitted.] 	-
The 	court's 	rationale 	is worth noting:
In this 	intimate and deferential 	environment,
public 	school 	authorities 	may 	reasonably
conclude 	it 	is not possible 	to both permit
instructors 	to 	engage 	in 	classroom political
advocacy and at 	the 	same 	time 	successfully
45

dissociate 	the 	school 	from such advocacy. 	In
short 	the very attributes 	of 	a 	successful
teacher/student 	relationship make 	it
reasonable 	for 	school 	authorities 	to 	conclude
the 	only practical means 	of 	dissociating a
school 	from political 	controversy 	is 	to
prohibit 	teachers 	from engaging 	in political
advocacy 	during 	instructional 	activities.
(Id. 	at p. 	1390; 	emphasis added.)
The 	CTA case 	is useful 	in analyzing 	the 	case at bar because
it establishes an important point. 	According to that 	case, 	a
school 	district has 	the express authority, 	pursuant 	to Education
Code 	section 7055, 	to restrict 	or even to prohibit employees 	and
officers 	from engaging 	in 	certain 	forms 	of 	political 	activity
during working hours 	on school 	premises.
Because 	of 	the 	factual 	similarity between 	the 	CTA case 	and
the case at bar, 	it 	is appropriate to use 	it as a guide 	in
determining whether an unfair 	labor practice 	occurred. 	If 	the
District's 	conduct 	is 	justified under 	the 	Education Code 	and/or
appellate 	case 	law, 	it would be 	extremely 	inappropriate 	for 	this
Board 	to 	find 	that 	an 	EERA violation 	occurred.
Using the approach of 	the CTA case, 	therefore, 	the 	first
-
question 	is 	whether 	the WTA's 	political 	activity occurred during
instructional activities. 	If so, 	according to the limitations of
our jurisdiction, 	dismissal 	is 	appropriate unless 	the WTA can
prove 	that 	the means 	chosen by the District 	to 	exercise 	its
Education Code 	rights violated EERA. 	(McFarland USD.)
Truck 	Sign
The 	truck 	sign 	clearly 	constitutes 	a 	form of 	political
advocacy, 	easily 	identifiable with an 	employee 	organization 	that
46

represents public 	school 	employees. 	The 	sign is a prominent,
publicly displayed political 	endorsement 	of 	named 	candidates 	in a
pending 	school 	board 	election.
Bearing 	in mind 	the 	CTA court's 	emphasis 	on 	the unique
nature of 	the 	elementary school 	environment, 	it 	is 	difficult 	to
imagine a much more 	"intimate" 	school 	setting 	than Wilson School.
The 	school 	community 	consists 	of 	approximately 250 	elementary
school 	students, 	a handful 	of 	staff, 	and a few members of
management. 	Children of 	school 	board candidates 	are also
students 	of WTA members. 	On a 	campus with less 	than a dozen
teachers, 	it 	is not unreasonable to conclude that 	students may
identify a 	teacher's vehicle with 	its 	driver.
Deciding whether a 	given 	form of 	political 	advocacy 	falls
within 	the 	CTA court's 	"instructional 	activity" 	zone must 	occur
on a case-by-case basis. 	Instruction, 	like learning, 	is an
experience 	that 	is 	not 	limited to 	the 	four physical 	walls 	of 	a
classroom nor 	limited 	to a 	teacher's 	lesson plan 	for a particular
day. 	Other 	events 	that 	occur during a given day may also 	serve
to 	furnish 	instructional 	opportunities.
To 	conclude 	that 	a 	sign 	is 	outside 	the 	instructional 	zone
because 	it 	is physically located on the 	other side 	of 	a pane 	of
glass 	is 	an oversimplification of 	the 	CTA case and misses 	the
point 	of 	the 	court's 	rationale. 	To preserve the unique student-
teacher 	relationship, 	the 	court's 	holding plainly permits 	a 	total
ban on a particular 	form of 	political 	advocacy by employees 	in
the instructional 	zone. 	Here, 	the District did not 	seek to
47

impose 	a 	total 	ban on 	the 	substantive message 	the WTA sought 	to
convey. 	It merely prohibited the 	exercise 	of 	one 	form of
political 	advocacy 	in a given setting at 	a particular 	time.
In considering 	the 	specific 	facts here, 	the District 	could
reasonably conclude 	that 	the 	truck sign, 	posted on 	school
property during 	the work day, 	was 	an 	impermissible 	expression of
political 	advocacy which 	occurred 	in an 	instructional 	setting.
The District was 	free 	to 	completely prohibit 	its 	display. 	The
WTA has 	not 	shown 	that 	the means 	selected by the District
violated any EERA-based rights, 	and dismissal 	is
appropriate.20,21
Campaign 	Buttons
WTA also 	challenges 	a District 	policy which permitted
wearing 	"campaign buttons 	during 	non-instructional 	duties
provided 	they are 	not visible 	to 	children." 	Although WTA does
not 	allege 	that 	the 	District 	actually prohibited any person 	from
wearing a button, 	the 	same principles 	discussed above 	should be
applied 	to determine whether 	the District's 	policy 	is 	unlawful 	on
its face.
20It 	is 	not 	relevant whether students 	actually noticed
Anderson's 	sign 	or whether disruption actually occurred. 	Nothing
in Education Code 	7055 	or 	the 	CTA case 	requires 	districts 	to make
such a 	showing as 	a precondition 	to 	regulation.
21It 	should be 	noted 	that 	the District's 	conduct 	did not
curtail 	the 	ability 	of Anderson or WTA to 	engage 	in other 	forms
of political 	advocacy 	in other settings. 	Nor did the District's
conduct 	affect WTA's ability to utilize alternate, 	equally
meaningful, 	forms of access to its employees.
48

As 	the 	CTA court noted, 	school 	districts 	spend considerable
resources 	to 	create 	trust, 	obedience and admiration 	for 	teachers
among 	the pupils. 	(See CTA at p. 	1390.) 	In view of 	that unique
environment, 	the 	court held that 	school 	districts may 	lawfully
restrict 	employees 	from engaging 	in 	this 	form of 	political
advocacy 	in 	instructional 	settings.
Wilson School 	exemplifies 	the 	type 	of 	tightly-knit
educational 	community described 	in CTA. 	Young 	students 	regularly
encounter their 	teachers 	throughout 	the 	school 	day. 	In such a
setting, 	the 	line between 	"instructional" 	and 	"noninstructional"
areas 	or activities 	is easily blurred. 	In a close case, 	it 	is
appropriate 	to 	heed 	the 	CTA court's 	strongly-worded 	caution
against 	permitting political 	advocacy by 	school 	employees 	to
impair 	the 	unique 	relationship between 	teacher and young
students. 	As with the truck sign, 	it 	is 	reasonable to conclude
that 	the 	District's 	button policy 	constitutes 	a 	reasonable
attempt 	to 	apply 	the 	instructional 	activity 	limitation
articulated 	in the 	CTA case. 	I 	conclude 	that 	the District was
free 	to promulgate 	a 	regulation which prohibits 	the wearing 	of
buttons 	in this manner. 	WTA has 	not provided 	facts which show
that 	the means 	chosen by 	the District violated any EERA-based
rights. 	Accordingly, 	this allegation is also dismissed.
CONCLUSION
Although 	this 	case 	raises 	interesting 	and 	controversial
issues 	regarding employees' 	rights 	to engage 	in political
activity at 	the workplace, 	my analysis 	is 	limited to 	the 	issues
49

which 	fall 	under 	the 	statutory 	jurisdiction of 	the 	Public
Employment 	Relations 	Board. 	The Board's 	first 	obligation 	in this
case 	is 	to answer 	the 	threshold question of 	whether WTA and
Anderson engaged 	in any rights protected by the 	EERA. 	I 	conclude
that no 	such right 	exists 	in current 	law, 	and I decline 	to extend
the 	law to 	create a new right.
In my view, 	the 	CTA case 	requires 	this 	Board to acknowledge
and accord adequate weight 	to 	the unique 	nature 	of 	the public
elementary 	school 	environment 	in 	considering whether an EERA
violation occurred at Wilson School. 	Bearing that 	in mind, 	I
conclude 	that 	the District's 	actions 	were 	justified by 	that 	case
and by the Education Code, 	and dismissal 	of WTA's 	charge 	is
appropriate.
The 	remaining 	questions 	raised by this 	case must 	be 	resolved
another day 	in another 	forum.
50
---

DYER, 	Member, 	concurring and dissenting: 	I am unpersuaded
that 	the Board's 	instant 	decision has 	any precedential value, 	or
that 	it provides any guidance 	to the parties 	in this matter. 	My
colleagues appear to agree that: 	(1) 	there is no protected right
under the Educational 	Employment Relations Act 	(EERA),1 regarding
the display of 	the Anderson campaign sign, 	and 	(2) 	the Wilmar
Union Elementary School 	District 	(District) 	policy 	regarding
political 	buttons 	did not 	harm any 	EERA protected 	rights.
However, 	as 	I view their decisions, 	they have reached these
conclusions by vastly disparate 	routes. 	I 	therefore 	concur 	in my
colleagues' 	decisions 	only 	insofar as 	they 	find that 	the District
did not violate 	the 	EERA when 	it 	restricted the 	communication or
speech rights of 	the Wilmar Teachers Association, 	CTA/NEA 	(WTA).
I 	dissent 	from the majority of 	their findings, 	as 	set 	forth
below. 	I 	specifically dissent 	from their 	finding 	that 	the
employee 	communications 	at 	issue 	here 	are 	not 	protected under 	the
EERA.
This 	case 	is before 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	on appeal by the District 	of a PERB
administrative 	law judge's 	(ALJ) 	proposed decision. 	The ALJ
found 	that 	the 	District 	interfered with 	rights 	guaranteed by 	EERA
section 3543.5 (a) 	and 	(b)2 when it: 	(1) 	precluded the WTA from
E1 ERA	EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
2Section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
51

displaying 	an 	association-sponsored 	campaign 	sign 	during 	school
hours 	on 	elementary 	school 	property 	in 	a 	location which was
visible 	to 	students; 	and 	(2) 	prohibited WTA members 	from wearing
association-sponsored 	campaign 	buttons 	on 	school 	property 	either
in 	instructional 	areas, 	or 	if 	the buttons 	were visible 	to
children.
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 	of 	rights
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.
WTA's 	claim 	sounds 	in 	the 	provisions 	of 	EERA 	section
3543.l(b).3 The District 	in 	turn argues 	that 	Education Code
section 	70554 expressly permits 	it 	to prohibit 	employees 	and
3 EERA section 3543.1(b) 	states:
(b) 	Employee organizations 	shall 	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. 	[Emphasis 	added.]
4 Education 	Code 	section 	7055 	provides:
The 	governing 	body 	of 	each 	local 	agency may
establish 	rules 	and 	regulations 	on 	the
following:
52

employee 	organizations 	from engaging 	in 	the 	types 	of 	political
activity at 	issue 	in this 	case.
(a) 	Officers and employees 	engaging 	in
political 	activity during working 	hours.
(b) 	Political activities on the premises of
the 	local 	agency.
The 	ALJ 	rendered a proposed 	decision 	in which he 	found 	that
the 	District 	violated 	EERA with 	regard 	to both 	the 	campaign 	sign
allegation and 	the 	campaign button allegation.
After reviewing 	the 	entire 	record, 	including 	the ALJ's
proposed decision, 	the District's 	exceptions 	and WTA's 	response,
I 	would 	reverse 	the 	proposed 	decision and dismiss 	the 	unfair
practice 	charge.
BACKGROUND
Factual 	Background
WTA 	is 	an employee 	organization within the meaning 	of 	EERA
section 3540.1(d), 	and is the exclusive representative of an
appropriate unit 	of 	the District's 	certificated employees 	within
the meaning of EERA section 3540.1(e). 	The District 	is an
employer within the meaning of 	section 3540.l(k).5
5EERA section 3540.1 	states, 	in pertinent part:
As 	used in this 	chapter:
(d) 	'Employee organization' 	means any
organization which 	includes 	employees 	of 	a
public 	school 	employer and which has 	as 	one
of 	its primary purposes 	representing 	those
employees 	in their 	relations 	with 	that public
school 	employer. 	'Employee organization'
shall 	also 	include 	any person 	such an
organization authorizes 	to act 	on its behalf.
53

(e) 	'Exclusive 	representative' 	means the
employee 	organization 	recognized 	or 	certified
as 	the 	exclusive 	negotiating 	representative
of 	certificated 	or 	classified 	employees 	in an
appropriate unit 	of 	a public 	school 	employer.
(k) 	'Public school 	employer' 	or 	'employer'
means 	the 	governing board of 	a 	school
district, 	a school district, 	a county board
of 	education, 	or a county superintendent 	of
schools.
The District 	is a small 	educational 	community. 	It 	consists
of 	one elementary school, 	Wilson School, 	with an average daily
attendance 	of about 	250 	students. 	Wilson School 	has nine
teachers, 	seven of whom belonged to WTA. 	Classes 	at 	the Wilson
School 	are 	for kindergarten through 	sixth grade.
Due 	to the 	size of 	the Wilson School, 	teachers and students
often see 	each other, 	both in and out 	of 	the classroom,
throughout 	the 	school 	day. 	A teacher assists 	students 	in
crossing a highway adjacent 	to 	the 	school. 	Teachers 	often
encounter students 	during recess and lunch periods, 	as well 	as 	in
the parking 	lot 	as 	they arrive at 	or 	leave 	school. 	Wilson School
has 	a 	lunchroom where 	teachers 	eat 	lunch and take breaks. 	The
lunchroom contains 	teacher mailboxes. 	Students 	sometimes 	enter
the 	lunchroom to pick up supplies, 	to copy documents, 	or to
contact 	teachers 	for various 	reasons. 	The 	lunchroom is 	converted
to 	a 	classroom almost 	daily 	for 	special 	classes 	or projects.
Although WTA, 	for the most part, 	always had a good working
relationship with the District, 	at 	the 	time 	in question its
working 	relationship with 	the 	District 	was 	beginning 	to 	fall
apart. 	WTA believed 	that 	some 	teachers 	were being 	treated
54

unfairly. 	School board members were 	entering 	their 	classrooms,
observing 	teachers 	and taking notes, 	which made 	the 	teachers 	feel
intimidated. 	It 	was 	perceived that monetary 	considerations 	were
being given 	to non-WTA teachers 	that 	were 	not 	extended 	to WTA
members. 	The District was 	reluctant 	to allow additional
instructional 	aides 	to assist 	the 	teachers. 	The WTA felt 	that 	it
needed a more positive environment, 	and 	it wanted to get 	a 	school
board that 	it 	could work with. 	As 	a 	result, 	WTA decided to
become active 	in the November, 	19966 local 	school board election.
WTA had never previously been 	involved 	in a 	school 	board
election.
At 	this 	time 	Kathleen Anderson 	(Anderson) 	was 	a 	sixth-grade
teacher at Wilson School, 	and a member of WTA. 	Anderson was
selected 	to head WTA's 	organizing 	effort. 	She 	helped WTA find
new candidates 	to run for the 	school board elections. 	She placed
WTA campaign signs 	around the 	community. 	As 	one 	of WTA's
campaign activities, 	Anderson attached a 	large 	sign
(approximately two 	feet by eight 	feet) 	to 	the 	side 	of 	her pick-up
truck. 	The 	sign 	indicated 	in block letters 	that 	three named
candidates7 were 	"ENDORSED BY WILMAR TEACHERS ASSOCIATION," 	and
urged people 	to 	"VOTE NOV. 	5."
In January of 	1992, 	long before the 	incidents which gave
6Unless otherwise noted, 	all dates refer to 1996.
7WTA endorsed candidates Bill 	Edwards 	(Edwards), 	Lisa
Gravesen 	(Gravesen) 	and Renee Rivera 	(Rivera).
55

rise 	to 	the 	instant 	charge, 	the District 	had adopted a policy8
and regulations9 regarding political 	activities 	by 	its 	employees.
8The 	policy 	in effect 	on 	the 	date 	of 	the 	challenged 	conduct
provided:
The Governing Board believes 	that 	district
employees 	have 	an obligation 	to prevent 	the
improper use of 	school 	time, 	materials or
facilities 	for political 	campaign purposes.
The 	Superintendent/principal 	shall 	provide
administrative 	regulations 	concerning
political 	activities 	on 	school 	property.
The Board respects 	the 	right 	of 	school
employees 	to engage 	in political 	activities
on their own time. 	Like other citizens, 	they
have 	the 	right 	to use 	the 	school 	for meetings
under 	the 	Civic 	Center Act. 	Such use 	shall
in no way 	interfere with the use 	of 	the
facilities 	for school purposes.
When engaging 	in political 	activities,
employees 	shall make 	it 	clear that 	they are
acting as 	individuals 	and not 	as
representatives 	of 	the district.
9These 	regulations 	provided:
Under no 	circumstances 	shall 	district
employees:
1. 	Conduct political 	activities 	on school
property during 	duty hours.
2. 	Solicit 	campaign support 	or contributions
on school 	property during duty hours.
3. 	Use 	school 	equipment 	for the 	reproduction
of 	campaign materials.
4. 	Post 	or distribute 	campaign materials 	on
school 	property.
5. 	Disseminate 	campaign materials 	through
the 	district mail 	service 	or place 	them in
staff mailboxes.
6. 	Permit 	the use of 	students 	to write,
address 	or distribute 	campaign materials.
56

It 	was undisputed below that 	these policies 	and 	regulations
applied to all District 	employees, 	including Anderson.
The 	above 	facts 	set 	the 	stage 	for the 	events which
precipitated 	the 	unfair practice 	charge 	currently before 	the
Board: 	the District's 	refusal 	to allow Anderson to park her
truck, 	with its accompanying sign, 	on the 	school parking lot 	in
an area where 	it was visible 	to 	the young 	students 	attending
class, 	and the District's 	limiting 	the wearing of 	campaign
buttons 	by 	teachers 	to 	times 	when 	they were 	in non-instructional
settings, 	and/or when they would not be visible 	to 	children.
On October 11, 	Anderson drove her truck, 	with its 	campaign
sign, 	to Wilson School and parked in the 	school parking lot. 	The
sign 	on her 	truck 	could be 	seen both 	from her 	classroom and 	from
other parts 	of 	the 	school.10 After 	seeing 	the 	sign and
discussing the matter with the District's 	legal 	counsel, 	school
board President Randell 	Cheek 	(Cheek), 	concluded that 	the 	sign
violated the January, 	1992 District policy. 	At about 	10:30 	a.m.
on October 11, 	Superintendent/Principal 	Lee Oliphant 	(Oliphant)
asked Anderson 	to 	step 	into 	the 	hall 	and handed her a 	copy 	of 	the
six point 	regulation which 	implemented 	the 	District's 	policy.
Oliphant 	told Anderson that 	she must 	either 	remove 	the 	sign 	from
her 	truck 	or move 	the 	truck 	from school 	property. 	During 	the
lunch break, 	Anderson 	removed her 	truck 	from school 	property as
10Three 	school 	board 	candidates 	had 	children 	in Anderson's
class. 	WTA only endorsed parents 	of 	two of 	those 	three 	children.
57

requested.11
Kristina Hoffman 	(Hoffman) 	was 	a parent volunteer with two
children who attend Wilson School. 	A few days 	after 	seeing 	the
sign on Anderson's 	truck, 	and after hearing about 	the 	incident
between Anderson, 	Oliphant and Cheek, 	Hoffman attached a hand
painted sign to 	the 	side 	of 	her pickup 	truck. 	Hoffman's 	sign was
six feet 	long and two 	feet high. 	It urged voters 	to elect
Edwards, 	Gravesen and Rivera, 	but made no reference to WTA, 	or to
the date 	of 	the upcoming 	election. 	Her 	intent 	in displaying 	the
sign was 	to make a political 	statement 	to voters.
During 	the 	three weeks prior to 	the November election,
Hoffman parked her 	truck 	in the Wilson School 	parking 	lot 	from
about 	9:00 	a.m. 	to 	11:30 	a.m. 	on Tuesdays 	and 	from about
10:00 	a.m. 	to 	12:00 p.m. 	on Fridays while 	she worked as a
classroom volunteer. 	She 	also used her 	truck to 	drive 	students
on a 	three hour 	field trip 	to a pumpkin patch, 	and to drop off
and pick up her 	children at 	school 	on a 	regular basis.
Cheek 	saw Hoffman's 	truck parked 	in 	the 	lot 	within a 	few
days 	after Anderson had been told to 	remove her vehicle. 	Upon
receiving a 	complaint 	from a parent 	about Hoffman's 	truck, 	he
responded 	that 	the 	truck did not belong 	to a District 	employee,
and 	that 	the District 	had no authority 	to 	regulate parent
n That 	same 	date, 	a memo 	from Cheek was placed 	in teacher
mailboxes. 	The memo 	restated the 	regulation pertaining 	to
political 	activities 	of 	employees 	and 	called for 	full 	compliance.
58

conduct.12 No action was 	taken with respect 	to Hoffman's 	truck.
At 	about 	the 	same 	time 	as 	the Anderson and Hoffman
incidents, 	WTA began printing 	campaign buttons 	in the 	shape and
size 	of 	a business 	card. 	Like 	the 	campaign sign on Anderson's
truck, 	the buttons 	indicated that WTA endorsed Edwards, 	Gravesen
and Rivera, 	and urged people 	to vote. 	The buttons were never
worn. 	Shortly after 	the Anderson sign 	incident, 	WTA lodged a
formal 	objection to 	the District's 	policies. 	Anderson testified
WTA deferred using 	the buttons 	as 	part 	of 	its 	campaign 	"until 	we
found out 	what 	we 	could and 	could not 	do."
Procedural 	Background
On October 31, 	WTA filed an unfair practice 	charge 	alleging
that 	the District's 	policies 	and 	conduct 	interfered with
protected rights.13 The District's position was 	that 	it 	had
12President 	Cheek gave 	inconsistent 	testimony 	on 	this 	point
at 	the administrative hearing. 	He 	repeated the 	claim that 	the
District 	had no authority to 	regulate parent 	conduct. 	He
additionally 	stated 	that 	he 	felt 	Hoffman's 	truck was 	not
"intrusive" 	because 	it was parked at 	the opposite end of 	the
parking 	lot 	from where Anderson's 	truck was 	parked.
However, 	Cheek also 	testified 	that 	although 	there 	had never
been a District 	policy regulating political 	activities 	of 	non-
employees 	on campus, 	there was no impediment 	to the board
adopting 	such a policy. 	Cheek further stated that, 	formal
policies 	aside, 	Superintendent 	Oliphant 	had the general 	authority
to 	regulate activity at 	the Wilson School 	to maintain order and
discipline.
13Three days before 	the 	formal 	hearing, 	WTA moved to amend
the 	complaint 	to add a 	discrimination 	claim based 	on 	the
District's 	failure 	to order Hoffman to move her campaign sign.
The ALJ granted the motion, 	but 	stated that 	he did not 	consider
the 	discrimination 	theory 	in his 	proposed 	decision because 	WTA
did not 	argue 	in 	its 	post-hearing brief 	for an 	independent
violation on that ground. 	However, 	the ALJ did consider evidence
regarding 	the parent's 	truck 	in 	connection with WTA's
59

authority under 	the 	Education 	Code 	to 	regulate political
activities 	on 	school property, 	and that 	it 	neither exceeded this
authority, 	nor violated EERA.
interference 	theory. 	I 	find, 	as WTA tacitly concedes by its
failure 	to 	file 	an exception 	to 	the ALJ's 	proposed decision 	on
this point, 	that 	the discrimination 	claim was abandoned by 	the
WTA. 	Therefore, 	the sole legal 	theory before us 	is WTA's
interference 	charge.
At 	the hearing before 	the ALJ, 	WTA argued that placing a
campaign 	sign 	on Anderson's 	truck was 	protected under EERA as 	an
organizing 	strategy 	related 	to 	collective 	bargaining 	and 	other
representational 	matters. 	Anderson 	testified at 	the hearing
that:
The 	importance 	[of 	the sign] 	to 	the Union was
that 	it was 	a very visible 	thing 	for us 	to
know that we were united, 	we were working 	for
a common goal, 	that, 	. 	. 	. 	life wasn't quite
as bad as we thought 	it was. 	It gave us
hope, 	it gave us that, 	the strength to move
on.
She 	additionally 	testified that 	the purpose 	of 	the 	sign was 	to
send a 	"statement 	to the Board, 	to the 	community that we, 	the
teachers, 	endorsed these 	candidates." 	She went 	on to say:
The statement was 	that we, 	the teachers, 	wanted
the Board to hear 	some 	of 	the 	things 	we were
saying 	and 	that 	the 	community needed 	to vote
and get 	a Board 	that 	was 	representative 	of
them. 	The present 	Board had 	four appointed
members 	and one 	elected. 	And we 	felt 	the
community needed 	to 	elect 	their 	own
representation. [14
]
Witness George Cassell 	(Cassell), 	an employee of the
California Teachers Association 	(CTA) 	also 	testified at 	the hearing
[14]Both 	of 	these 	claims 	were 	repeated by WTA in 	the 	charges
filed with 	the 	Board.
60

that 	campaign 	signs 	and buttons 	at 	the 	school 	site were 	important
internal 	factors 	to union members. 	Cassell 	stated that 	they:
enforced 	their 	own actions 	that 	they were part
of 	a 	group activity and 	that 	they weren't 	doing
something 	on their own, 	that 	they wouldn't be
threatened because 	they were 	the 	only 	one 	who
was 	demonstrating on the 	issue.
Cassell 	also 	testified 	that 	the 	signs 	and buttons 	were
intended 	to help 	influence voters 	in the 	community.15
The 	District 	in 	turn argued that 	it 	could 	lawfully 	restrict
political 	speech 	in 	instructional 	settings 	if 	such 	speech 	could
cause 	controversy, 	disrupt the educational 	environment, 	or
compromise District 	neutrality. 	Cheek 	testified at 	the 	hearing
that 	the 	District 	had determined that 	political 	activities 	on
campus 	would be 	inappropriate. 	The District 	had vowed not 	to 	take
a 	position 	regarding 	any 	candidate 	and did not 	want 	its 	young
students 	exposed to political 	activity. 	Because 	some 	students 	knew
candidates, 	were children of candidates, 	or were neighbors of
candidates, 	the District 	had decided that political 	activity
surrounding 	the 	election might 	upset 	them. 	Cheek 	testified 	that
"We weren't 	wanting any leaflets 	or anything 	large 	on 	campus 	that
would distract 	from the 	educational 	process." 	Cheek believed the
sign would cause 	"major political 	unrest" 	among parents 	at 	the
school.
Witness Drusella West was 	a 	former member of 	the 	school 	board
who 	chose not 	to 	run in 1996. 	She 	testified at 	the hearing 	that
15Both 	the 	internal 	support 	claim and 	the 	community 	influence
claims 	were 	repeated by WTA in 	its 	arguments before 	the 	Board.
61

this 	was 	"the 	first 	heated election or 	contested election," 	and
that 	there was 	"tension all 	around" 	among parents, 	staff and
teachers.
On October 22, 	1997, 	the ALJ rendered a proposed decision in
which he 	found that 	the District violated EERA with 	regard 	to both
the 	campaign sign allegation and 	the 	campaign button allegation.
The District 	filed exceptions, 	to which WTA responded.
DISCUSSION
The 	Scope 	of 	PERB's 	Jurisdiction
The District 	argues 	that 	PERB has 	no 	jurisdiction over 	this
matter: 	(1) 	because the unfair practice 	charge 	constitutes a
dispute over first amendment 	free speech rights, 	and 	(2) 	that 	the
District 	has 	the authority, 	under Education Code 	sections 	7050
et 	seq., 	to regulate political 	speech on the Wilson School 	campus.
The District 	contends 	that 	these 	Education Code 	sections 	supersede
the 	EERA, 	and thereby serve 	to divest 	PERB of 	jurisdiction 	in this
matter.
I 	reject 	these 	contentions. 	PERB has 	jurisdiction over
conduct 	which may constitute 	an unfair practice under EERA, 	even
though the 	conduct 	involves 	rights which are 	the 	subject 	of 	other
constitutional 	or statutory provisions. 	PERB has 	exclusive
original 	jurisdiction over acts 	that 	are 	arguably protected 	or
prohibited under the EERA. 	(EERA sec. 	3541.5;16 El 	Rancho Unified
16EERA section 3541.5 provides, 	in part, 	that:
The 	initial 	determination as 	to whether the
charges 	of unfair practices are 	justified, 	and,
if 	so, 	what 	remedy is necessary to effectuate
62

School Dist, v. National Education Assn. 	(1983) 	33 Cal.3d 946, 	952-
960 	[192 Cal.Rptr. 	123]; 	San Diego Teachers Assn, 	v. 	Superio	- 	r Court
(1979) 	24 Cal.3d 1, 	12-14 	[154 Cal.Rptr. 	893]; 	Barstow Unified
School District 	(1997) 	PERB Decision No. 	1138b 	(Barstow), 	at
p. 	13.)
the purposes of 	this 	chapter, 	shall be a matter
within 	the 	exclusive 	jurisdiction of 	the board.
I 	find that 	neither our 	federal 	or state 	constitutions, 	nor
the Education Code, 	bar the exercise of 	PERB's 	jurisdiction in this
case. 	To the 	contrary, 	I 	consider them to be 	in harmony with EERA,
in that 	they assist us 	in discerning 	the 	respective 	rights 	and
responsibilities 	of 	the parties under the 	statutes which PERB has
been 	charged 	to 	interpret.
I 	find 	that 	PERB not 	only has 	the power to 	construe 	EERA in
light 	of 	constitutional 	precedent 	(Cumero v. 	Public 	Employment
Relations Board 	(1989) 	49 Cal.3d 575, 	583 	[262 Cal.Rptr. 	46];
Richmond 	Unified 	School 	District/Simi 	Valley Unified 	School
District 	(1979) 	PERB Decision No. 	99 	(Richmond/Simi Valley), 	at
p. 	16), 	but that the Board, 	as an agency of the State of
California, 	has 	a duty to harmonize 	the provisions 	of 	EERA with the
basic 	charters 	of 	our liberty. 	(See United States 	Constitution,
First Amendment;17 United States Constitution, 	art. VI, 	cl. 	2,18
17The First Amendment provides:
Congress 	shall 	make 	no 	law respecting an
establishment 	of 	religion, 	or prohibiting the
free 	exercise 	thereof; 	or abridging the 	freedom
of speech, 	or of the press; 	or the right to the
people peaceably to assemble, 	and to petition
the government 	for a 	redress 	of grievances.
63

art. VI, 	cl. 	3;19 California Constitution Article I,
sec. 	2 (a) ;20 Cooper v. Aaron 	(1958) 	358 U.S. 	1, 	18 	[3 L.Ed.2d 5].)
The 	Board may also 	interpret 	the 	Education Code, 	when such an
interpretation is necessary, 	to carry out 	its duty to administer
EERA. 	(McFarland Unified School 	District v. 	Public 	Employment
Relations Board 	(1991) 	228 Cal.App.3d 166 	[279 Cal.Rptr. 	26];
Barstow, 	at p. 	13, 	citing San Bernardino City Unified School
District 	(1989) 	PERB Decision No. 	723; 	Whisman Elementary School
District 	(1991) 	PERB Decision No. 	868.)
In cases 	such as 	this, 	there is 	the potential 	for tension
between the Education Code and EERA. 	In these 	instances, 	the Board
should harmonize 	the 	purposes 	underlying 	EERA with 	the 	Education
18Article VI, 	cl. 2 provides:
This 	Constitution, 	and the laws of the United
States which shall 	be made 	in pursuance
thereof; 	and all 	treaties made, 	or which shall
be made, 	under the authority of 	the United
States, 	shall be the supreme law of the land;
and 	the 	judges 	in every 	state 	shall be bound
thereby, 	anything 	in the 	Constitution or laws
of 	any State 	to 	the 	contrary notwithstanding.
19Article VI, 	cl. 	3 provides, 	in pertinent part:
The 	Senators 	and Representatives 	before
mentioned, 	and the members 	of 	the 	several 	state
legislatures, 	and all 	executive and judicial
officers, 	both of 	the United States and of 	the
several 	states, 	shall be bound by oath of
affirmation, 	to support 	this Constitution.
20
Article I, 	sec. 2(a) provides, 	in part:
Every person may 	freely speak, 	write and
publish his 	or her sentiments 	on all 	subjects,
being 	responsible 	for 	the abuse 	of 	this 	right.
A law may not 	restrain or abridge 	liberty 	of
speech or press.
64

Code. 	(San Mateo City School District v. 	Public Employment
Relations Board 	(1983) 	33 Cal.3d 850, 	865 	[191 Cal.Rptr. 	800];
Solano County Community College District 	(1982) 	PERB Decision No.
219, 	at pp. 	12-16.)
Although an 	employer may 	lawfully 	exercise 	its 	rights 	under
the Education Code, 	it may not do so 	in a manner which violates
EERA. 	The provisions 	of 	the 	Education Code 	cannot be used as 	a
shield to protect unfair practices. 	If 	it appears 	that 	the
Education Code 	is being used in this 	fashion, 	PERB will 	assert
jurisdiction over 	the 	alleged EERA violation. 	(McFarland Unified
School District 	(1990) 	PERB Decision No. 	786.)
In the 	instant 	case, 	the exercise 	of 	our jurisdiction is
triggered by the 	following: 	(1) 	whether there 	is a right, 	under
EERA, 	of 	the employee organization and 	its members 	to communicate
with 	fellow District 	employees 	and/or with the general public; 	and
(2) 	if so, 	whether the District exercised its management 	rights 	in
a 	way 	that 	violates 	EERA.
Merits 	of 	the Unfair Practice 	Charge
To 	establish unlawful 	interference with protected rights, 	the
charging party must 	first make 	a prima 	facie 	showing 	that 	the
employer's 	conduct 	tends 	to or does 	result 	in some harm to employee
rights 	protected under EERA. 	(Carlsbad Unified School 	District
(1979) 	PERB Decision No. 	89 	(Carlsbad); 	see also, 	Novato Unified
School District 	(1982) 	PERB Decision No. 	210.) 	Therefore, 	the
threshold question 	is 	whether WTA was 	engaged 	in 	conduct 	that 	is
protected by EERA section 3543.5(a) 	and 	(b) 	and by section
65

3543.l(b). 	If so, 	we must then address the question of whether the
District 	violated any of 	those 	rights 	by exercising 	the 	authority
vested 	in 	it 	by 	the 	EERA.21
In answering these questions, 	we must 	first 	look to 	the
communication itself, 	to see 	if 	it 	is protected. 	If we determine
that 	it 	is 	in fact a protected right, 	we must 	then decide 	if,
because of the time, 	place, 	and manner of the communication, 	it 	can
be properly restricted. 	(Richmond/Simi Valley, 	at p. 	19.) 	In
doing so we must be 	careful 	not 	confuse 	the 	communication, 	which
guides us 	in deciding whether 	or not 	the 	activity 	is 	protected,
with the place where 	the 	communication occurs, 	which guides us 	in
deciding 	whether 	or not 	the 	activity 	can be 	restricted.
Anderson's 	Campaign 	Sign
"To be protected, 	employee activity must be 	in pursuit 	of
lawful 	objectives 	and 	carried 	out 	in a proper manner." 	(Konocti
Unified School District 	(1982) 	PERB Decision No. 	217 	(Konocti).)
Here, 	WTA was engaged in a lawful 	objective, 	i.e., 	participation in
the democratic election of members 	of 	its 	own school board. 	I 	find
that 	the 	acts 	surrounding WTA's 	display of 	the 	sign on the 	school
parking 	lot 	were 	not 	so 	"indefensible" 	as 	to 	fall 	outside 	the pale
of protected activities under EERA. 	(NLRB v. 	Local Union No. 	1229.
International 	Brotherhood of Electrical Workers 	(1953) 	346 U.S.
21The 	fact 	that 	the District 	had the ability to 	restrict
certain 	types 	of 	communication 	in 	the 	school 	setting under
Education Code 	section 7055 	does 	not mean 	that 	the District 	lacked
coextensive 	operational 	powers under EERA. 	As was 	previously
explained, 	the 	existence 	of 	such dual 	statutory power vests 	the
Board with 	jurisdiction 	to address 	this 	question.
66

464, 	477 	[98 L.Ed. 	195] 	(NLRB v. 	Local Union No. 	1229): 	Konocti, 	at
p. 	7; 	Elk Lumber Co. 	(1950) 	91 NLRB 333, 	336-337 	[26 LRRM 1493].)
To 	the 	contrary, 	Anderson's 	campaign sign 	conformed with 	the
District's January, 	1992, 	policy. 	The sign's disclaimer, 	"Endorsed
by Wilmar Teacher's 	Association," 	clearly 	communicated 	that 	WTA was
acting on its 	own behalf, 	and was not holding 	itself 	out 	as 	a
"representative 	of 	the District." 	Furthermore, 	Anderson was
respectful 	of 	the District's 	decision to ban her sign 	from campus.
She did not 	contest 	the District's 	authority to do so, 	but 	rather
complied with Oliphant's 	directive 	at 	the 	first 	available
opportunity. 	Neither Anderson nor WTA displayed 	the 	sort 	of 	animus
which 	is 	a hallmark of unprotected communication 	cases.22
I 	find 	that 	the 	right 	to display Anderson's 	campaign 	sign was
a protected activity under EERA. 	The 	record 	indicates 	that 	the
sign was 	intended 	to promote 	solidarity among District 	employees,
and to communicate with the public at 	large. 	Clearly, 	WTA's
political 	campaign grew out 	of 	its 	frustration with 	the 	existing
school board. 	Anderson's 	sign was 	an 	integral 	part 	of WTA's
attempt 	to 	improve 	the 	existing wages, 	hours and working 	conditions
for 	the 	employees 	it 	represented by 	changing 	the 	character of 	the
District's 	Board of 	Trustees. 	It would be 	contrary to 	logic 	to
22See NLRB v. 	Local Union No. 	1229 	(employees distribution to
the public 	of 	handbills 	which attacked 	the 	quality 	of 	employer's
product 	constituted insubordination, 	disobedience, 	or disloyalty of
an employee to his employer, 	and was an unprotected activity);
Pittsburgh Unified School District 	(1978) 	PERB Decision No. 	47
(libel 	of 	both management 	and non-management 	employees 	not
protected conduct); 	Konocti. 	(conduct of bus driver who stopped his
bus 	while 	transporting 	children 	to 	school 	and 	requested students 	to
support possible 	strike action was not protected activity).
67

believe 	that WTA's 	political 	efforts 	were 	not 	directly 	related 	to
its 	job as 	exclusive 	representative 	of 	the District's 	employees.
I 	find 	that 	the 	campaign 	sign 	clearly 	constituted 	an 	"other
form of 	communication" 	under EERA section 3543.1(b). 	It was a
prominent, 	publicly displayed political 	endorsement 	of 	named
candidates 	in a pending school 	board election, 	and was 	easily
identifiable 	with 	the 	employee 	organization 	that 	represented public
school 	employees. 	I 	am unwilling to 	overturn 	the ALJ's 	credibility
determination 	that 	the 	sign was 	intended 	to promote 	solidarity
among district 	employees. 	My experience 	shows 	that, 	although
political 	billboards may add converts 	to 	the 	cause, 	their primary
effect 	is 	to buoy the 	faithful.
The 	sign was 	also 	intended as 	a 	communication with 	the public
at 	large. 	I 	find that 	this did not 	remove 	it 	from the 	class 	of
protected activities 	under EERA. 	I 	do not 	interpret 	EERA section
3543.l(b) 	as 	creating a distinction between 	"employee"
communication and 	"public" 	communication. 	It 	only speaks 	of
"communication." 	In the 	instant 	case 	I 	see no rational basis 	for
finding 	that WTA's 	communication with 	its 	employees 	is protected,
but 	that WTA's 	communication with the public 	is 	not protected.
In 	reaching 	this 	conclusion on union 	communications 	with the
public, 	I am mindful 	of 	the words 	of 	the United States 	Supreme
Court, 	which find that 	"Teachers are, 	as a class, 	the members of a
community most 	likely 	to have 	informed and definite 	opinions 	as 	to
. 	. 	. 	the operation of the schools 	. 	. 	. 	." 	(Pickering v. 	Board of
Education 	(1968) 	391 U.S. 	563, 	572 	[20 L.Ed.2d 811] 	(Pickering).)
68

The 	federal 	Supreme 	Court 	has 	additionally admonished us 	in cases
such as 	this 	"to arrive at 	a balance between the 	interests 	of 	the
teacher, 	as a citizen, 	in commenting upon matters of public 	concern- -
and the 	interest 	of 	the State, 	as an employer, 	in promoting the
efficiency of 	the public 	services 	it performs 	through 	its
employees." 	(Id. 	at 568, 	emphasis added; 	see also, 	Richmond/Simi
Valley, 	at p. 	19; 	Pittsburgh Unified School District v. 	CSEA 	(1985)
166 Cal.App.3d 875, 	903 	[213 	Cal.Rptr. 	34] 	(school employees
association's 	dissemination of 	information 	concerning 	the 	facts 	of
a labor dispute 	is within that 	area of 	free discussion that 	is
guaranteed by the Constitution); Education Code sec. 7052.)23Having found that the c
communication under EERA, 	I proceed to the question of whether the
District 	had 	the power 	to 	restrict 	the 	display of 	the 	sign 	on 	the
Wilson School 	parking 	lot.
In Carlsbad, 	the Board 	found 	that 	in order to establish
unlawful 	interference with a protected right, 	the 	charging party
must 	first make 	a prima 	facie 	showing 	that 	the 	employer's 	conduct
tends 	to 	or does 	result 	in some harm to employee 	rights. 	Where 	the
harm to employee 	rights 	is 	slight 	and the 	employer offers 	a
23Education Code section 7052, 	which was chaptered, 	passed and
signed 	concurrently with section 	7055, 	upon which the District
relies, reads:
Except 	as 	otherwise provided 	in 	this 	article,
or as 	necessary 	to meet 	requirements 	of 	federal
law as 	it pertains 	to a particular employer or
employee, 	no restrictions 	shall 	be placed on
the political 	activities 	of 	any 	officer or
employee 	of a 	local 	agency.
69

justification based on operational 	necessity, 	the 	competing
interests 	are 	then balanced. 	Where 	the harm is 	inherently
destructive 	of 	employee 	rights, 	the 	employer's 	conduct will
constitute 	interference unless 	the 	employer 	can prove 	that 	his
conduct 	resulted 	from circumstances 	beyond 	the 	employer's 	control
and no alternative 	course 	of 	action was 	available.24
I 	find 	that WTA has 	made 	the 	requisite prima 	facie 	showing of
some harm to 	employee 	rights under Carlsbad, 	namely 	its
communication rights under EERA section 3543.1(b). 	I also find
that 	the 	first 	test 	set 	forth in Carlsbad, 	where 	the harm to
employee 	rights 	is 	slight, 	where the employer offers a
justification based on operational 	necessity, 	and where 	the 	Board
balances 	the 	interest of 	the parties, 	controls 	the 	facts 	of 	this
case.25
In weighing 	the 	respective 	interests 	of 	the parties before us,
I 	proceed 	from the premise 	that 	there 	is 	a unique nature 	to 	the
elementary public 	school 	environment where, 	because 	of 	their youth,
M The balancing test 	that we apply in Carlsbad is 	similar, 	if
not 	identical, 	to 	the balancing 	tests 	applied by the appellate
courts 	in weighing 	the 	free 	speech 	interests 	of 	the parties 	in
public school cases. 	(Pickering, 	at p. 	568; 	Hazelwood School
District v. 	Kuhlmeier 	(1989) 	484 U.S. 	260, 	273 	[98 L.Ed.2d 592]
(Hazelwood).)
25I 	find that 	this matter 	can be disposed of under the 	PERB's
rule in Carlsbad. 	As a result, 	I do not address questions
pertaining 	to 	the propriety of 	the District's policy 	in effect 	on
October 11, 	or the 	regulations adopted to 	implement 	that policy.
Nor do 	I 	address 	the policy of October 24, 	under which the 	campaign
button charge was 	raised, 	or its 	successor policy, 	adopted after
the 	1996 	election. 	Under Carlsbad, 	the District was 	empowered to
restrict 	the 	communication rights 	of WTA in this 	setting with or
without 	any policy, 	and even without 	recourse 	to 	the provisions 	of
Education Code 	section 7055.
70

children are easily influenced. 	(See e.g., 	Hazelwood. 	at
pp. 	266-267; 	L.A. 	Teachers Union v. 	L.A. 	City Bd. 	of Ed. 	(1969)
71 Cal.2d 551, 	558 	[78 Cal.Rptr. 	723] 	(L.A. Teachers): 	California
Teachers Assn. 	v. 	Governing Board of 	San Diego Unified School
District 	(1996) 	45 Cal.App.4th 1383, 	1390 	[53 Cal.Rptr.2d 474]
(San Diego).) 	There are perhaps 	few more unique and 	intimate
school 	environments 	than that which exists 	at 	the Wilson School.
The 	school 	community 	consists 	of 	approximately 250 	elementary
school 	students, 	a handful 	of 	staff, 	and a few members 	of
management. 	Children of 	school board candidates 	are also 	students
of WTA members. 	The 	children know the teachers. 	They know the
cars 	that 	the 	teachers drive. 	On a campus 	of 	this 	size and
composition, 	it is not unreasonable to conclude, 	as did the
District, 	that 	the posting of 	such a 	sign on school 	grounds 	could
be disruptive 	of 	the 	educational 	environment.26
After 	considering 	the 	specific physical 	details 	of 	the Wilson
School 	setting, 	as well 	as 	the 	right 	of WTA to communicate 	its
choices 	for the school board, 	and the 	right 	of 	the District 	to
ensure a proper educational 	environment, 	I 	find that 	the District's
ban on Anderson's 	sign was 	justified under EERA, 	based on
26I 	find 	that 	whether 	students 	actually noticed Anderson's
sign, 	or whether disruption actually occurred, 	does not 	control 	the
propriety of 	the District's ban on political 	activity on campus.
In my view, 	there 	is 	nothing 	in EERA which requires 	the District 	to
wait 	for 	such a disruption 	to 	occur as 	a precondition 	to
regulation. 	Here 	the 	school board made a rational 	finding, 	based
upon its knowledge of 	the student body, 	its employees, 	and the
community, 	that political 	activity would be disruptive 	of 	or
materially interfere with school 	activities. 	(See L.A. 	Teachers,
at p. 	559.)
71

- -
operational 	necessity. 	Here 	the harm to employee rights was
slight. 	The District 	did not 	seek to 	impose a 	total 	ban on 	the
substantive message WTA sought 	to 	convey. 	It merely prohibited the
exercise 	of 	one 	form of political 	advocacy 	in a given setting.
"Other means 	of 	communication" 	under EERA section 3543.1(b) 	does
not mean 	"any and all means 	of 	communication." 	(Regents 	of 	the
University of 	California v. 	Public 	Employment Relations 	Bd. 	(1986)
177 Cal.App.3d 648, 	654 	[223 Cal.Rptr. 	127] 	(Regents); 	emphasis in
original.)
-
27 Since 	the total 	number of 	fellow union members with
whom Anderson sought 	to communicate was 	six persons, 	all 	of whom
were employed at 	the 	same 	school, 	I 	find that any right 	that WTA
might 	have 	had to display a 	campaign 	sign 	on campus 	was 	outweighed
by 	the 	decision 	of 	the District 	that 	political 	activities 	on 	campus
would be 	inappropriate. 	This 	is 	especially true 	in light 	of 	the
fact 	that 	similar 	types 	and means 	of 	communication were 	available
to WTA other 	than on school 	property. 	The District 	did not 	attempt
to 	curtail 	the ability of WTA to engage 	in other 	forms 	of political
advocacy 	in other settings. 	Nor did the District's 	conduct 	affect
WTA's 	ability to utilize alternate, 	equally meaningful, 	forms of
access 	to its employees.
With regard to union communications 	to the public, 	I 	find that
27In Regents. 	the Court 	of Appeal upheld the Board's
tat 	of 	Higher 	Education 	Employer-Employee 	Relations 	Act
section 	3568, 	which 	contains 	statutory language virtually 	identical
to that appearing in EERA section 3 5 4 3 . K b ) . 	(Regents, 	at p. 	654.)
It 	thereafter 	found that 	the University's 	denial	- - 	f 	a union 	request
to hang a banner at 	a 	location 	reserved 	for 	official 	announcements
on the UCLA campus was a 	"reasonable 	regulation" 	of 	the union's
right 	to communicate with its members. 	(Id. 	at pp. 	653-655.) 	So
too 	is 	the case here.
7
- -interpre 	ion
o
2

the District's 	interests 	outweighed 	the 	slight 	interest 	of WTA here
as well. 	In such a small 	community, 	most potential voters were
already aware 	of 	the 	school 	board 	candidates who were 	endorsed by
WTA. 	As 	witness 	Larry King 	testified at 	the administrative
hearing, 	"It 	[would have been] 	impossible 	to drive your kid to
school 	and 	for the kid not 	to 	see a 	sign that 	said that 	the Wilmar
Teachers 	Association 	supported 	certain 	candidates." 	A large
campaign 	sign on 	school 	grounds 	was 	unnecessary 	to 	further 	convey
this message.
I 	find that 	whether 	the 	communication was 	intended 	for
employees 	or whether it was 	intended for the public, 	or both, 	is 	of
little 	consequence 	here. 	There 	could have been a hundred 	reasons
for display of 	the 	campaign sign. 	Under the 	circumstances 	of 	this
case, 	I 	find no 	justifiable 	reason which would have allowed WTA to
place 	this 	campaign sign on the Wilson School 	parking 	lot.
Given the unique 	facts 	of 	this 	case, 	including the 	small 	size
of 	the 	student body and 	faculty, 	and the 	close 	contact 	these 	two
groups had with each other during 	the 	typical 	school 	day, 	my
weighing 	of 	the 	respective 	interests 	under 	Carlsbad 	shows 	that 	the
scales must 	invariably tip 	in favor of 	the District. 	I 	find that
the District's 	action was 	a 	"reasonable 	restriction" 	of WTA's
"other means of 	communication" 	under EERA section 3545.1(b). 	Here
the District 	could reasonably conclude 	that 	the 	truck sign, 	posted
on 	school 	property during 	the work day, 	was 	an unsettling and
inappropriate 	expression 	of 	political 	advocacy 	in an 	instructional
setting. 	(Cf. 	Hazelwood. 	at p. 	270.) 	The District was thus within
73

its managerial 	prerogative 	to prohibit 	its 	display.
Hoffman's 	Campaign 	Sign
Nor does 	the 	fact 	that 	the District allowed Hoffman, 	the
parent volunteer, 	to display her campaign sign on school 	grounds
change my conclusion. 	The District was 	clearly wrong 	in adhering
to 	President 	Cheek's 	assessment 	that 	the 	truck 	"was 	not 	owned by a
staff person, 	and that 	the District 	had no authority to 	regulate
parent 	conduct." 	The 	same 	inherent 	authority which 	enabled 	the
District 	to ban WTA's 	sign also vested 	it with the power to
regulate Hoffman's political 	activities. 	President 	Cheek himself
testified at 	the 	hearing before 	the ALJ 	that 	although 	there 	had
never been a District 	policy 	regulating political 	activities 	of
non-employees 	on campus, 	there was 	no 	impediment 	to the board
adopting 	such a policy. 	Cheek 	further stated that, 	formal 	policies
aside, 	Principal 	Oliphant had the authority to regulate activity at
the Wilson School 	to maintain order and discipline. 	(See
Hazelwood. 	at pp. 	266-267; 	Education Code sec. 	7055(b).) 	The
question that arises, 	therefore, 	is whether the District's
disparate 	treatment 	of WTA and 	of 	Hoffman 	compels 	me 	to 	alter my
analysis. 	I 	find that it does not.
In Regents, 	the union argued that because 	the University had
permitted 	three 	nonofficial 	organizations 	to post 	banners 	in an
official 	space, 	the University had lost 	its 	right 	to reserve 	the
banner space 	for official 	communications 	only. 	(Id. 	at p. 	656.)
In rejecting this 	claim, 	the Court of Appeal 	found that 	"a certain
number of 	exceptions 	to a rule 	do not 	necessarily show that 	the
74

rule 	is 	being applied 	in an 	improper discriminatory manner."
(Ibid. : citations omitted.)28
The 	fact 	that 	the District 	in the 	instant 	case mistakenly
failed to evict Hoffman's 	sign from the 	school 	grounds, 	as 	it had
Anderson's, 	does not 	rise 	to a showing of 	an interference 	claim
under EERA. 	(Regents, 	at p. 	656.) 	Accordingly, 	I would dismiss
this allegation.
- -
Campaign 	Buttons
WTA also 	challenges 	the 	District's 	policy which permitted
wearing 	"campaign buttons 	during non-instructional 	duties 	provided
they are 	not visible 	to 	children" 	as 	constituting an unfair labor
practice.
Although WTA does 	not 	allege 	that 	the District 	actually
prohibited any person 	from wearing a button, 	I 	find 	that 	such a
question 	is 	ripe 	for adjudication by the Board. 	I 	do not 	find 	it
necessary 	that 	a 	teacher must violate what might 	seem to be 	a
subjective 	regulation 	in order 	to vest 	the 	Board with 	the power 	to
act.29 I 	am unwilling to 	force 	teachers 	into a Hobson's 	choice 	of
28I note that, 	in Regents. 	the Court ultimately decided this
question on the basis 	of HEERA sections 	3571 and 3571.3, 	which bar
an 	employer 	from expressing 	a preference 	for 	one 	employee
organization over another. 	(Regents, 	at pp. 	656-657.)
29Assuming 	that 	Cheek's 	testimony at 	the administrative 	hearing
reflected the District's position at 	the 	time 	in question, 	it may
help 	to 	explain the 	teacher's 	source 	of uncertainty as 	to when and
where 	the buttons 	could be worn. 	For example, 	Cheek gave a
somewhat 	confusing 	explanation 	regarding what 	he 	considered 	to be
curricular activities, 	when the buttons 	could be worn, 	and
instructional 	activities, 	when they could not be worn. 	At 	one
point 	he 	also 	testified that 	if 	a 	teacher was 	going 	to 	their 	car to
get 	curriculum it would be 	curricular 	time, 	but 	if 	they were 	going
to their car to get 	lunch, 	it was not 	curricular time.
75

either 	exercising 	their 	communication 	rights 	in an uncertain
environment, 	or facing an unknown District 	response. 	(Cf. 	Pacific
Gas 	and Electric 	Company v. 	Energy Resources 	Commission 	(1983) 	461
U.S. 	190, 	201 	[75 L.Ed.2d 752] 	(ripeness turns on the fitness of
the 	issue 	for decision, 	and on the hardship to the parties 	caused
by withholding consideration of 	the 	issue); 	Los Angeles Unified
School District 	(1996) 	PERB Decision No. 	1181; 	California State
Employees Association 	(Darzins) 	PERB Decision No. 	546-S 	(cases
which hold 	that 	statutory period 	to 	file 	unfair practice 	charge
commenced on 	the 	date 	that 	the 	conduct 	constituting 	the 	unfair
practice was 	discovered, 	and not 	some 	later date when the 	legal
significance 	of 	the 	conduct 	was 	discovered).)
As was 	the 	case with Anderson's 	campaign sign, 	I 	find this 	to
be 	a protected activity under 	the 	EERA. 	I 	additionally 	find 	that
the actions 	of WTA and its members 	did nothing 	to 	remove 	the
protected status 	from this 	activity. 	WTA and 	its members 	showed
consummate 	respect 	for the power of 	the District 	to 	restrict 	this
type 	of 	communication. 	Even when the District 	informed the
teachers 	under what 	circumstances 	the buttons 	could be worn, 	WTA
refrained from displaying the buttons, 	in Anderson's words, 	"until
we 	found 	out 	what 	we 	could and 	could not 	do."
Having 	reached these 	conclusions, 	I 	also 	find that 	any harm to
employee 	rights 	which may have 	resulted 	from the 	District's
limiting, 	but not prohibiting, 	the wearing of the buttons 	on campus
was 	slight. 	I again apply 	the 	Carlsbad weighing process 	to
determine whether 	the District's 	policy violates WTA's 	rights,
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under EERA, 	to wear the 	campaign buttons 	on the 	campus 	of 	the
Wilson School.
On the 	facts before us, 	I 	find that 	the District's button
policy again 	constituted a 	reasonable 	attempt, 	based on 	operational
necessity, 	to appropriately regulate 	the 	communication rights 	of
WTA and its members. 	(Cf. 	San Diego, 	at pp. 	1392-1393.) 	Contrary
to WTA's 	claim, 	the prohibition did not 	constitute a 	total ban.
Rather, 	I 	find that 	it 	imposed a reasonable 	restriction upon the
teachers 	not 	to wear the buttons during 	instructional 	times, 	or at
other times when students 	could see 	them. 	As was 	the 	case with
Anderson's 	campaign sign, 	the District was within the 	scope of 	its
authority 	in 	enforcing a 	regulation which 	restricted 	the 	wearing 	of
buttons 	in this manner. 	WTA's 	target 	audience under EERA was 	the
same as with Anderson's 	sign; 	all 	of 	the alternate means 	of
communication, 	previously set 	forth, 	were available. 	Furthermore,
as Cheek testified, 	the teachers were able to talk together, 	to
give 	each other leaflets, 	to use 	the 	internal mail 	system to
distribute 	information, 	and even to place bumper stickers 	on their
cars 	to further their political goals. 	Accordingly, 	I would
dismiss 	this 	allegation as well.
CONCLUSION
Our 	role 	is 	to determine whether the District 	exercised any of
its prerogative 	rights 	in a manner 	that violated EERA. 	I 	find 	that
it 	did not. 	Since WTA has 	not 	established the 	elements 	of 	an
unlawful 	interference 	claim, 	I would dismiss 	the unfair practice
charge and complaint 	in Case No. 	SF-CE-1918.
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