State of California (Department of Parks and Recreation) (International Union of Operating Engineers, Craft-Maintenance Division, Units 12 and 13) * * * OVERRULED IN PART by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 11 * * * (PERB 1026S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS, 	CRAFT-MAINTENANCE
DIVISION, 	UNITS 	12 AND 13,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT
OF 	PARKS AND RECREATION),
Respondent.
)
)
)
)
) 	Case No. 	SF-CE-102-S
PERB Decision No. 	1026-S
November 	17, 	1993
)
))
)
)
)
)
Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Paul D.
Supton, 	Attorney, 	for International Union of Operating Engineers,
Craft-Maintenance Division, 	Units 	12 and 13; 	State of California
(Department 	of 	Personnel Administration) 	by Paul M. 	Starkey,
Labor Relations 	Counsel, 	for State of 	California 	(Department 	of
Parks and Recreation).
Before Blair, 	Chair; 	Carlyle and Garcia, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by the State of
California 	(Department of 	Parks and Recreation) 	(State) 	to a
proposed decision 	(attached hereto) 	of 	a 	PERB administrative 	law
judge 	(ALJ). 	The ALJ found that 	the State violated the Ralph C.
Dills Act 	(Dills Act) 	section 3519 (a) 	and 	(b)1 when it prohibited
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519 	states, 	in
pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
_____ )
* * * OVERRULED IN PART by multiple decisions, as recognized in State of
California (Department of Corrections and Rehabilitation) (2024) PERB
Decision No. 2926-S, pp. 16-19 & fn. 11 * * *

maintenance 	services personnel 	in Units 	12 	and 13 	from wearing
union buttons 	on 	their uniforms 	and disciplined personnel 	for 	the
wearing of buttons.
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.
After review of 	the 	entire 	record, 	including 	the proposed
decision, 	the State's exceptions, 	International Union of
Operating Engineers, 	Craft-Maintenance Division, 	Units 	12 and
13's 	(IUOE) 	cross-exceptions and responses 	thereto, 	the Board
finds 	the ALJ's 	findings 	of 	fact and 	conclusions 	of 	law to be
free of prejudicial error. 	The Board, 	however, 	chooses to
address 	the 	following 	exceptions 	raised on appeal.
DISCUSSION
Deferral 	to Arbitration
In the proposed decision, 	the ALJ determined that under Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646, 	the Board
was 	without 	jurisdiction 	to hear 	the alleged 	section 	3519(a)
violation concerning Unit 	13 members, 	because the Memorandum of
Understanding 	(MOU) 	contained an 	identical 	provision 	to 	section
3519(a) 	of 	the Dills Act 	and provided 	for binding arbitration of
grievances.
22

The 	State argues 	on appeal 	that 	the 	remaining allegations
should also be 	deferred 	to binding arbitration. 	The 	State
contends 	that 	in allowing 	IUOE 	to amend 	its 	complaint 	(over the
State's objection) 	to include Unit 	13, 	it also included the
continued 	illegal 	conduct 	up 	to 	the present 	on 	the prohibition of
wearing buttons. 	As 	a new MOU was 	in effect at 	the 	time 	of 	the
amendment 	(which contained a binding arbitration clause), 	the
State 	argues 	the matter 	should have 	been deferred 	to 	arbitration.
The Board disagrees with the State's 	logic. 	As 	to Unit 	12, 	the
ALJ was 	correct 	in 	looking 	to 	the 	time 	the 	State 	took action
against 	IUOE members 	complained of 	in the 	complaint. 	This
occurred at 	a 	time when an MOU was 	not 	in place 	for Unit 	12
members 	and as 	such, 	the Board has 	jurisdiction to hear and rule
on the 	case. 	(State of 	California. 	Department 	of Youth Authority
(1992) 	PERB Decision No. 	962-S.)
As 	to the section 3519(b) 	violation concerning Unit 	13, 	we
affirm the ALJ's 	finding 	in 	refusing 	to defer this 	allegation 	to
arbitration. 	As 	the ALJ properly found, 	a review of 	the parties'
MOU 	finds 	no provision barring 	the 	State 	from denying 	employee
organizations 	their rights under the Dills Act. 	As 	such, 	the ALJ
correctly 	retained 	jurisdiction and 	ruled on 	the 	Unit 	13 	section
3519(b) 	claim.
Wearing 	of 	Buttons
In the past, 	the Board has had limited opportunities 	in
ruling on 	"button" 	cases. 	In State of 	California 	(Department 	of
Parks and Recreation) 	(1983) 	PERB Decision No. 	328-S, 	the Board
33

found 	that 	an 	employee 	had been wrongly discriminated against 	for
wearing a union button and belt buckle. 	In its appeal, 	the State
argues 	that 	the 	language 	of 	that 	case 	is dicta, 	and therefore 	the
case before 	the Board is 	one 	of 	first 	impression.
Section 3515 provides 	that:
. 	. 	. 	employees shall have the right to form,
join, 	and participate 	in the activities of
employee 	organizations 	of 	their own 	choosing
for 	the purpose 	of 	representation on all
matters 	of 	employer-employee 	relations.
In cases 	of 	alleged 	interference, 	a violation will be 	found
when the 	employer's 	acts 	interfere with 	the 	exercise 	of 	protected
rights 	and the 	employer 	is unable 	to 	justify 	its 	actions by
proving 	operational 	necessity. 	(Carlsbad Unified School 	District
(1979) 	PERB Decision No. 	89 	(Carlsbad); 	Novato Unified School
District 	(1982) 	PERB Decision No. 	210.)
We 	concur with 	the ALJ 	that 	the wearing 	of 	union buttons 	is
a protected right, 	absent 	special 	circumstances. 	However, 	in
affirming 	the ALJ's 	proposed decision, 	we 	disagree with the
State's 	contention that 	in 	finding a protected right, 	we have
concluded 	that 	it 	is 	a per se violation 	for an employer to 	limit
or prohibit 	the wearing of buttons. 	The 	right 	to wear buttons 	is
not 	unlimited and 	is 	subject 	to 	reasonable 	regulation. 	If
special 	circumstances 	exist, 	then the 	employer may well 	be within
its 	rights 	to limit 	or prohibit 	the wearing of buttons by
employees. 	In private sector cases, 	this view has been
supported. 	(See Republic Aviation Corp. 	v. 	NLRB 	(1945) 	324 U.S.
793; 	Pay'N Save Corp. 	v. 	NLRB 	(9th Cir. 	1981) 	641 F.2d 697 	[106
44

LRRM 3040]; 	NLRB v. 	Harrah's Club 	(9th Cir. 	1964) 	337 F.2d 177
[57 LRRM 2198] .)
Since 	the State banned the wearing of all union buttons, 	it
is 	incumbent 	upon the 	State 	to demonstrate 	special 	circumstances
for such a prohibition. 	The National 	Labor Relations 	Board
(NLRB) 	has prohibited the wearing of union 	insignia when safety,
discipline 	or 	effect 	on 	the 	employer has 	been shown 	(The 	Kendall
Company 	(1983) 	267 NLRB 963 	[114 	LRRM 1156]). 	Applying the same
standard here, 	the State has 	failed to support 	its 	case. 	The
record indicates 	that most members 	of Units 	12 	and 13 	do not
interact 	with 	the public 	nor does 	the pin by 	its 	design 	create 	a
safety or health issue. 	Further, 	the State 	failed to demonstrate
how the wearing 	of 	buttons 	had a disruptive 	effect 	on employees
or the public. 	As 	no 	special 	circumstances 	have been
demonstrated, 	we affirm the ALJ's 	finding 	that 	the 	State violated
section 3519(a) 	of the Dills Act.
- -
To establish a violation of 	section 3519(b), 	IUOE had the
burden to 	establish a denial 	of 	its 	rights 	separate and apart
from the 	rights 	of 	individual 	employees. 	(State of 	California
(Franchise Tax Board) 	(1992) 	PERB Decision No. 	954-S.) 	IUOE has
a protected right 	to 	communicate with 	its members 	at 	work 	sites.
This 	right 	has been 	found by the Board to exist 	in 	its 	right 	of
access. 	(See State of California. 	Department of Transportation,
et al. 	(1981) 	PERB Decision No. 	159b-S.) 	In a prior decision,
the 	Board 	found that 	the wearing of 	a union button was 	not 	part
of 	the 	organizational 	right 	to 	communicate because 	the union had
5

failed 	to produce 	independent 	evidence 	that 	the 	State 	had
violated the union's 	rights under the Act. 	(State 	of 	California
(Department of 	Parks and Recreation) 	(1983) 	PERB Decision
No. 	328-S.)
Here, 	however, 	IUOE had just become the new exclusive
representative 	for Unit 	12. 	The purpose of 	the button was 	to
identify the new representative, 	and to assist 	in identifying
stewards 	on the 	job sites. 	Based upon the 	facts 	of 	this 	case,
the ban 	of buttons 	by the 	State 	interfered with 	communication
vital 	to 	IUOE's access and its 	right 	to represent 	its members.
Further, 	as 	the ALJ correctly pointed out, 	although
alternative means 	of 	communications might be available, 	this 	does
not make buttons 	any less 	legitimate. 	Whether or not 	other means
of 	communication are 	available 	does 	not 	deny a particular 	form of
access. 	Only when a particular type 	of 	communication 	is
"disruptive" 	will 	the Board look to 	the 	existence 	of 	other means
of 	communications. 	(University of 	California at Berkeley 	(1984)
PERB Decision No. 	420-H.) 	As 	stated earlier, 	the State was
unable 	to demonstrate 	that 	the wearing of 	the buttons 	was
disruptive. 	It was acknowledged by both parties 	that 	the
majority of workers 	in both Units 	12 and 13 	have, 	little, 	if any
contact with the public. 	This 	rebuts 	the State's argument 	that
it needs 	to have 	its workers maintain politically, 	neutral
uniforms. 	Further, 	the size of 	the button did not 	in any way
significantly alter 	the 	uniform that 	could 	lead 	to 	safety 	or
grooming problems. 	Therefore, 	the Board upholds 	the ALJ's
66

finding 	that 	the 	State 	interfered with 	the 	right 	of 	the 	exclusive
representative 	to 	communicate with Units 	12 	and 	13 	members 	in
violation of section 3519(b).
IUOE's 	Cross-Exceptions
In a 	cross-exception, 	IUOE argues 	that 	the ALJ erred 	in not
finding 	that members 	have 	a 	First Amendment 	right 	to wear buttons
as an exercise of 	their right of 	free 	speech. 	However, 	the Board
supports 	the ALJ's 	finding 	that 	cases 	have 	ruled 	that 	the wearing
of buttons 	is 	not protected by the 	First Amendment 	as 	the 	removal
of 	the button 	is 	not 	to 	regulate off-duty speech but 	rather
appearance, 	which has 	only incidental 	effects 	on speech. 	(INS v.
FLRA 	(9th Cir. 	1988) 	885 	F.2d 1449 	[129 	LRRM 2256].) 	Therefore,
this 	cross-exception 	is 	rejected.
ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this 	case, 	it has been found that
the 	State 	of 	California 	(Department 	of 	Parks 	and Recreation)
violated the Ralph C. 	Dills Act 	(Dills Act), 	Government Code
section 3519(a) 	and 	(b).
Pursuant to Dills Act section 3514.5(c), 	it is hereby
ordered 	that 	the 	State 	of 	California 	(Department 	of 	Parks 	and
Recreation) 	and its representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Prohibiting maintenance 	services personnel 	in
Units 	12 	and 	13 	from wearing union buttons 	on their uniforms.
77

B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Remove any disciplinary action based upon 	the
wearing of union buttons 	from the personnel 	files 	of Unit 	12 	and
13 personnel.
2. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall be maintained for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable steps 	shall be 	taken to insure 	that 	this
Notice 	is 	not 	reduced in size, 	defaced, 	altered or covered by any
material.
3. 	Written notification of 	the actions 	taken to 	comply
with 	this 	Order 	shall 	be made 	to 	the 	Sacramento Regional 	Director
of 	the 	Public 	Employment 	Relations 	Board 	in accordance with 	the
director's 	instructions.
Chair Blair and Member Garcia 	joined 	in 	this 	Decision.
8
8

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-102-S,
International 	Union of Operating Engineers. 	Craft-Maintenance
Division. 	Units 	12 	and 13 v. 	State of California 	(Department 	of
Parks and Recreation). 	in which all parties had the right 	to
participate, 	it has been 	found that 	the State of California
(Department 	of 	Parks and Recreation) 	violated section 3519(a) 	and
(b) 	of the Ralph C. 	Dills Act 	(Dills Act).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Prohibiting maintenance 	services personnel 	in
Units 	12 	and 	13 	from wearing union buttons 	on their uniforms.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Remove 	any disciplinary action based upon 	the
wearing 	of union buttons 	from the personnel 	files 	of Unit 	12 	and
13 personnel.
Dated: 	STATE 	OF 	CALIFORNIA
(DEPARTMENT OF 	PARKS AND RECREATION)
By:.
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
INTERNATIONAL 	UNION OF OPERATING
ENGINEERS, 	CRAFT-MAINTENANCE
DIVISION, 	UNITS 	12 AND 13,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	PARKS AND RECREATION),
Respondent.
)
)
)
)
)
Unfair Practice
Case No. 	SF-CE-102-S
PROPOSED DECISION
(2/24/93)
)
)
)
)
Appearances; 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld, 	by Paul D.
Supton, 	Attorney, 	for International Union of Operating Engineers,
Craft-Maintenance Division, 	Units 	12 	and 13; 	State of California
(Department 	of 	Personnel Administration) 	by Paul M. 	Starkey,
Labor Relations 	Counsel, 	for State 	of 	California 	(Department 	of
Parks and Recreation).
Before JAMES W. 	TAMM, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On November 15, 	1991, 	the International Union of Operating
Engineers, 	Craft-Maintenance Division, 	Unit 12 	(IUOE) 	filed a
charge against 	the 	State 	of 	California 	(Department 	of 	Parks 	and
Recreation) 	(State or Department). 	On February 18, 	1992, 	the
general 	counsel's 	office 	of 	the 	Public 	Employment 	Relations 	Board
(PERB 	or Board) 	issued a 	complaint 	alleging 	that 	the 	State
prohibited 	employees 	from wearing union buttons 	on 	their uniforms
in violation of 	section 3519(a) 	and 	(b) 	of 	the Ralph C. 	Dills Act
(Dills 	Act 	or 	Act).1
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	in
this 	decision are 	to the Government 	Code. 	Section 3519(a) 	and
(b) 	provide that 	it 	shall be unlawful 	for the State to:
(a) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
______________ )

A settlement 	conference was held, 	however, 	the matter
remained unresolved. 	After two party 	initiated 	continuances, 	a
formal hearing was held on August 	11 and 14, 	1992. 	At 	the start
of 	the hearing, 	the 	complaint was amended to include additional
instances 	of 	the 	State prohibiting 	the wearing 	of 	union buttons
in Unit 	13, 	as well as Unit 	12.2 At 	the 	conclusion of 	the
hearing, 	the parties waived transcripts 	and presented oral
arguments. 	After supplemental 	arguments 	and additional 	case
citations were 	filed, 	the 	case was 	submitted for decision.
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because of 	their exercise 	of 	rights
guaranteed by this chapter. 	. 	. 	.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
FINDINGS 	OF 	FACT
The material 	facts 	in this 	case are primarily undisputed.
In May of 	1991, 	IUOE prevailed in a decertification election and
became the exclusive 	representative of Unit 	12. 	IUOE was 	already
the 	exclusive 	representative 	for Unit 	13. 	Shortly thereafter,
business 	representatives 	of 	the 	IUOE began 	traveling 	to various
worksites 	to 	introduce 	themselves 	to 	the membership and
familiarize 	the membership with 	their 	new exclusive
representative. 	As part 	of 	their efforts 	to 	increase membership
familiarization with the new union, 	the business 	representatives
handed out union buttons.
2Unit 	12 	consists of 	craft and maintenance employees. 	Unit
13 	consists 	of 	stationary engineers.
22

The buttons 	in question were 	one and one quarter 	inches 	in
diameter with the words 	"STATIONARY ENGINEERS" 	written 	in letters
approximately one-eighth 	inch high. 	The 	initials 	IUOE-AFL-CIO 	in
letters 	one-sixteenth of 	an 	inch high are also on 	the 	face 	of 	the
button. 	In the 	center of 	the button is a picture 	of 	a pressure
gage with 	the name 	of 	the union circling 	it 	in 	letters 	so 	small
they are barely visible.
According 	to 	the 	testimony of 	one 	IUOE 	Business
Representative, 	Stephanie Allan 	(Allan), 	IUOE hoped that members
wearing 	the buttons would help 	establish 	the 	fact 	that 	the
employees 	were 	now 	represented by a 	new exclusive 	representative
and would also 	increase 	awareness 	of 	upcoming negotiations.
At 	at 	least 	one 	location, 	Allan handed out 	a different
button to 	the union steward. 	That button was 	slightly larger
than 	the member's 	button 	(one and three-eighths 	inches 	in
diameter) 	with the 	initials 	"IUOE" 	and the word 	"STEWARD" 	written
across 	the 	face 	of 	the button 	in letters 	approximately
one-quarter 	inch high. 	The 	steward button 	contained 	the 	same
picture of a pressure gage as 	the member's button. 	The purpose
of 	the 	steward button was 	to 	identify 	the union 	steward at 	that
location 	in 	case unit members 	needed assistance at 	the worksite.
Shortly after members began wearing 	the buttons, 	employees
in both Units 	12 	and 13 	were 	told to remove 	the buttons because
they 	did not 	conform with 	the 	department's 	grooming 	and uniform
3
3

guidelines.3 At one worksite, 	a steward, 	Keith Kessler, 	was
given 	a 	corrective 	interview 	follow-up 	letter which 	contained,
among other items, 	a reference 	to his wearing the 	steward button.
The 	department's 	long 	standing policy 	regarding uniforms 	and
grooming 	states:
Unless 	otherwise 	covered by bargaining 	unit
contract 	no 	jewelry may be 	worn 	other 	than
watches, 	rings, 	the 	"Golden Bear" 	tie tack,
special acts or service pins, 	or plain
earrings.
The Memorandum of Understanding 	(MOU or contract) 	for both
Units 	12 	and 13 	contain no reference 	to 	jewelry or union buttons.
During June 	of 	1991 at 	the negotiating table, 	the 	state's
chief negotiator for Unit 	12, 	Arnold Beck 	(Beck), 	made a proposal
to 	the union that 	the grooming policy of 	the Department 	of 	Parks
and Recreation 	operations manual 	be made part 	of 	the 	contract 	and
that 	that 	section of 	the 	contract 	not be grievable 	or subject 	to
arbitration. 	The negotiator 	for the union, 	Dennis 	Bonnifeld
(Bonnifeld), 	rejected that proposal 	and argued that 	the grooming
standards 	should not be part 	of 	the 	contract. 	Bonnifeld argued
that 	if 	the 	state wanted to 	change 	the 	current 	grooming policy,
it 	should be dealt with elsewhere.
The 	parties 	then agreed 	that 	Shelly Bahr-Sproger
(Bahr-Sproger), 	the state's 	representative on the bargaining team
from the Department 	of 	Parks 	and Recreation, 	and Joe Wexler
3Allen also 	testified 	that 	she 	handed 	out 	identical 	buttons
to members 	employed by the Department 	of 	Corrections, 	General
Services 	and Caltrans. 	According 	to Allan's uncontested
testimony, 	none 	of 	those departments 	prohibited members 	from
wearing 	the buttons 	on their uniforms.
44

(Wexler), 	a union representative from the Department of Parks and
Recreation, 	would meet 	in a different 	forum, 	away 	from the
negotiating table, 	to discuss 	the grooming standards. 	At 	that
meeting, 	Bahr-Sproger made a proposal 	to keep 	the 	current manual
and 	current 	grooming 	standards 	the 	same. 	Wexler proposed 	instead
that 	union pins 	and badges 	be 	allowed under 	the 	grooming policy.
Bahr-Sproger 	rejected 	the union's 	proposal 	providing 	the 	right 	to
wear union pins 	and buttons. 	Wexler then dropped his proposal
and agreed to 	the 	state's proposal, 	which did not 	allow the
wearing 	of union pins 	and buttons. 	Wexler and Bahr-Sproger 	then
took 	this 	agreement 	to Bonnifeld to 	review. 	Bonnifeld asked
whether 	this 	was 	what 	they had agreed upon and when 	they 	told him
"yes," 	he 	signed at 	the bottom of 	the agreement. 	The 	state's
negotiator, 	Beck, 	did not sign the agreement, 	however, 	Bahr-
Sproger 	did.
Beck 	later withdrew 	the 	state's 	negotiating proposal 	to
include grooming 	standards 	in the 	contract. 	Grooming 	standards
were 	not 	negotiated at 	the bargaining 	table.
Although 	the 	state's 	copy of 	the 	grooming 	standards
agreement 	has 	some 	language written 	in 	the upper 	right-hand
corner 	indicating 	that 	the 	grooming 	standards 	would be
implemented when the MOU was 	implemented, 	it 	is unclear whose
handwriting 	it 	is. 	Bonnifeld testified that 	the handwriting was
not 	on the document 	when he 	signed 	it. 	(See CP Exhibit 	#8.)
Therefore, 	I 	cannot 	conclude 	that 	the handwritten portion of 	that
agreement which 	indicates 	it will 	be 	implemented at 	the 	time 	of
55

the MOU implementation, 	is part of 	the agreement. 	Also, 	this
agreement 	was 	not 	treated as 	a 	side 	agreement 	to 	the 	collective
bargaining 	contract. 	Side agreements were kept 	through a
different process 	and specifically noted as 	side 	agreements 	and
addenda 	to 	the 	contract. 	The new grooming 	standard was 	clearly
not a side agreement to the 	contract, 	nor was 	it a part 	of 	the
contract 	itself.4
The 	Department 	categorizes 	its 	employees 	as 	either visitor
services personnel 	or maintenance 	services personnel. 	If
employees have, 	as part of 	their regular duties, 	contact with the
public, 	they are considered visitor services personnel. 	Rangers,
park aids, 	employees 	staffing kiosks at 	information centers,
guides within museums, 	or others assigned to give direction or
information 	to 	the public are 	examples 	of visitor 	services
personnel. 	None 	of 	the 	employees 	represented by the 	IUOE 	in
Units 	12 	or 13 	are 	considered visitor services personnel. 	All
are 	considered maintenance 	personnel.
Although maintenance personnel 	are 	not 	hired 	to deal 	with
the public, 	they do have 	occasional 	incidental 	contact with the
public. 	One maintenance 	employee 	from the Russian River area,
testified that 	he 	spends 	about 	one percent 	of 	his 	time dealing
with the public. 	He gave as an example, 	a single 	individual 	who
asked 	for directions 	during 	the previous 	week. 	An auto mechanic
4Although Bahr-Sproger 	testified 	that 	she 	understood 	the
grooming 	standard had been 	implemented, 	that 	evidence was 	hearsay
and unsupported by other 	evidence. 	Pursuant 	to 	PERB 	Regulation
32176, 	such hearsay evidence 	is 	insufficient to support 	a
finding. 	(Cal. 	Code of Regs., 	tit. 	3, 	sec. 	17.)
66

from the 	Hearst 	Castle 	Park, 	testified that 	he 	deals with 	the
public 	once 	or 	twice 	a week when 	they wander 	into 	the maintenance
area 	and ask 	for directions. 	A maintenance 	employee 	for a
smaller park 	in the 	Clear Lake area, 	where 	only one maintenance
employee 	and 	one visitor 	services 	employee 	are 	assigned,
testified that 	he had daily contact with the public. 	Even so, 	he
estimated 	that 	his 	public 	contact 	did not 	exceed 	two percent 	of
his time.
Carl 	Chavez 	(Chavez), 	regional director for the Department's
Northern District, 	testified 	that maintenance personnel 	will
often have 	frequent 	contact 	with the public 	during 	some 	of 	their
duties, 	such as 	cleaning restrooms.
The uniforms 	of 	the maintenance personnel 	are 	identical 	to
those 	of 	the visitor 	services personnel 	with minor exceptions.
For example, 	visitor services personnel 	such as 	rangers will
often wear a badge 	or a 	shield on their uniform. 	Hats 	and name
tags may also be different. 	Visitor services 	personnel 	wear
metal name plates with a silver, 	satin, 	or dark green finish. 	In
contrast, 	maintenance workers 	in Unit 	12 	wear a one-inch by
four-inch dark green 	cloth name 	tag with 	the 	employee's 	name 	in
white block 	lettering 	centered on 	the 	top 	of 	the 	tag and 	the
words 	"TRADES 	& MAINTENANCE" 	centered at 	the bottom. 	Unit 	13
employees wear similar cloth name tags, 	except 	the words
"OPERATING ENGINEER" 	is 	centered below the name. 	All uniformed
employees 	wear 	large 	bright 	gold 	shoulder patches 	identifying
them as 	employees 	of 	the Department 	of 	Parks and Recreation.
7
7

Despite 	the name tags, 	which 	identify maintenance personnel
as 	"TRADES 	& MAINTENANCE" 	or 	"OPERATING ENGINEER," 	the public
often 	confuses 	maintenance personnel 	with 	rangers 	or other
visitor 	services 	personnel.
Chavez 	testified that 	uniforms 	were 	required because 	of 	the
need 	to 	identify personnel 	to 	the public. 	The policy 	forbidding
union buttons 	is 	to 	create an identification to 	the public which
is 	"essentially neutral." 	Chavez 	testified that 	all 	types 	of
visitors 	come 	into the parks, 	and the Department wants 	its
employees 	to be apolitical while 	they're working. 	According 	to
Chavez, 	wearing a union button could presumably 	indicate 	the
employees 	or the Department were not 	"politically neutral" 	and
could 	offend 	some visitors.
Chavez 	first 	testified that, 	although he had never seen any,
he 	thought 	religious medals 	could be worn on a 	chain around an
employee's neck, 	if 	they were not a safety hazard. 	After
reviewing 	the policy however, 	Chavez 	corrected his 	testimony
indicating 	that 	the policy would not 	allow a 	religious 	medal 	to
be worn. 	Chavez has, 	however, 	seen Department employees wear
necklaces 	as well 	as 	United Way buttons. 	The United Way 	campaign
is 	sponsored 	in part 	by the 	State 	of 	California. 	Seasonal
employees 	also 	have 	worn 	Smokey-the-Bear buttons 	when 	they were
conducting 	junior 	ranger programs 	and 	the buttons 	were 	given 	out
as part 	of 	the program. 	There 	is no evidence 	of 	any other past
or present 	deviation 	from the 	department's 	policy on uniforms 	and
grooming.
8

IUOE witnesses 	testified 	that 	in addition 	to direct person-
to-person 	communications with members, 	IUOE has bulletin boards
at various worksites 	and a newsletter available 	to 	it.
ISSUE
1. 	Should this 	complaint be 	deferred 	to arbitration?
2. 	Did the State violate section 3519(a) 	and 	(b) 	of 	the
Dills 	Act 	by prohibiting 	employees 	from wearing union buttons 	on
their uniforms 	during working 	hours?
3. 	Did 	IUOE waive 	its 	rights 	during negotiations?
DISCUSSION
Deferral 	Issue
Section 3514.5(a)(2) 	of the Dills Act states, 	in pertinent
part, 	that PERB:
[S]hall not 	. 	. 	. 	issue a complaint against
conduct 	also prohibited by the provisions 	of
the 	[MOU in effect] 	between the parties until
the grievance machinery of 	the agreement, 	if
it 	exists and covers 	the matter at 	issue, 	has
been exhausted, 	either by settlement 	or
binding 	arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision
No. 	646, 	PERB held that 	section 3541.5(a) 	of the Educational
Employment Relations Act, 	which contains 	language 	identical 	to
section 3514.5(a) 	of 	the Dills Act, 	established a jurisdictional
rule 	requiring 	that 	a 	charge be dismissed and deferred 	if: 	(1)
the grievance machinery of 	the 	agreement 	covers 	the matter at
issue and culminates 	in binding arbitration; 	and, 	(2) 	the conduct
complained 	of 	in 	the unfair practice 	charge 	is 	prohibited by 	the
provisions 	of 	the agreement 	between the parties.
99

According to the State, 	the MOUs 	in both Units 	12 	and 13,
specifically prohibit 	reprisals 	for 	the 	exercise 	of Dills Act
rights 	and require binding arbitration. 	The evidence at 	the
hearing, 	however, 	was that no MOU between the exclusive
representative 	and the State was 	in effect 	for Unit 	12 	at 	the
time of 	the State's action. 	In State of California. 	Department
of Youth Authority 	(1992) 	PERB Decision No. 	962-S, 	the Board held
that 	the 	State had no duty 	to 	arbitrate 	a 	retaliation 	claim when
the 	adverse 	action 	occurred when 	there was 	no 	current 	agreement.
The 	Board held:
. 	. 	. 	although 	[the employee] 	retains a
statutory 	right 	under 	the Dills Act 	to be
free 	from employer retaliation, 	he obtains 	no
vested 	right under 	the 	contract 	to be 	free 	of
such retaliatory action. 	Furthermore, 	the
expired 	agreement 	provides 	no 	independent
authority which, 	under normal principles 	of
contract 	interpretation, 	requires 	the
arbitration provisions 	to 	continue. 	Because
the 	State's 	duty to arbitrate 	this matter
does 	not 	continue 	in effect 	after 	expiration
of 	the agreement, 	the Board may not 	dismiss
and defer this 	charge 	to arbitration. 	PERB
remains 	the 	appropriate 	forum for 	resolving
such disputes 	in the absence 	of 	contractual
provisions 	for binding arbitration.
Therefore, 	deferral 	is not an appropriate defense to the
Unit 12 allegations.
However, 	an MOU was 	in effect 	in Unit 	13.5 Article 	IV,
5The 	parties 	negotiated 	agreement 	was 	only partially
admitted as 	evidence 	in the 	formal 	hearing. 	However, 	PERB may
take official 	notice 	of 	its 	records. 	(John Swett Unified School
District 	(1981) 	PERB Decision No. 	188; 	Mendocino Community
College District 	(1980) 	PERB Decision No. 	144.) 	PERB Regulation
32120 requires, 	in pertinent part:
Each 	employer 	entering 	into 	a written
10

Section 2 	of 	that MOU states:
agreement 	or memorandum of 	understanding with
an 	exclusive 	representative pursuant 	to 	the
. 	. 	. Ralph C. Dills Act 	. 	. 	. shall file two
copies 	of 	the 	agreement 	and any amendments
thereto with the 	regional 	office within 	60
days 	after execution of 	the agreement,
memorandum or 	amendment.
No 	Reprisals
The 	State 	employer and 	IUOE 	shall 	not 	impose
or threaten to 	impose 	reprisals 	on employees,
to discriminate 	or 	threaten 	to discriminate
against 	employees, 	or otherwise 	to interfere
with, 	restrain, 	or coerce employees because
of 	the 	exercise 	of 	their rights 	guaranteed by
the 	State 	Employer-Employee 	Relations Act.
The 	protection provided by the MOU is 	identical 	to 	the
protection provided by section 3519(a) 	of 	the Dills Act. 	Article
V of 	the MOU also provides 	for binding arbitration of 	grievances.
Since 	the 	grievance machinery of 	the MOU 	covers 	the 	allegations
raised by 	the 	unfair practice 	complaint 	and 	culminate 	in binding
arbitration, 	the 3519(a) 	allegations pertaining to Unit 	13
employees 	must 	be 	dismissed and deferred 	to 	arbitration.
In State 	of 	California 	(Department 	of 	Parks 	and Recreation)
(1990) 	PERB Decision No. 	810-S, 	PERB held that where the contract
prohibits 	retaliation and 	interference against 	employees, 	but
does 	not 	also 	contain 	language barring 	the 	State 	from denying
employee 	organizations 	their rights under the Dills Act, 	the
section 	3519(b) 	violation should not be deferred.
In this 	case, 	the State argues that Article II, 	section 3
entitled 	"Access" 	and Article 	II, 	section 7, 	entitled 	"Steward's
Rights," 	cover the 	issues 	in the 3519(b) 	allegations and
11

therefore, 	mandate deferral 	of 	those allegations. 	Those 	sections
state:
Access
a. 	During the 	term of this agreement, 	paid
staff 	representatives 	of 	IUOE may visit 	the
work site 	for purposes 	related to 	the
implementation and 	enforcement 	of 	this
Agreement. 	Access 	shall be at 	the discretion
of 	the 	department 	head or designee 	and 	cannot
interfere with the work of 	the 	employees.
The 	paid 	staff 	representatives 	must 	notify
the 	department 	head or designee 	at 	least
twenty-four 	(24) 	hours 	in advance of 	the
visit. 	Access 	shall 	not be unreasonably
withheld.
b. 	The 	department 	head may 	restrict 	access
to 	certain work sites 	or areas 	for reasons 	of
safety, 	privacy, 	public order or other
business-related 	reasons.
Stewards' Rights
a. 	The State 	recognizes 	and agrees 	to deal
with designated 	stewards 	of 	IUOE 	on all
matters 	relating to grievances.
b. 	A written 	list 	of 	IUOE 	stewards 	serving
each work 	location, 	listed by department,
shall 	be 	furnished 	to 	the 	State 	immediately
after their designation, 	and IUOE shall
notify 	the 	State promptly of 	any 	changes 	of
such officers 	or stewards. 	IUOE 	stewards
shall 	not 	be 	recognized by 	the 	State until
such lists 	or 	changes 	thereto are 	received.
There 	shall 	be no more 	than one 	IUOE 	steward
per work 	location.
c. 	Upon request 	of an aggrieved employee, 	an
IUOE 	steward may 	investigate 	the 	grievance,
provided 	it 	is 	in his/her regular work
location, 	and assist 	in its presentation.
The 	steward 	shall 	be 	allowed 	reasonable 	time
for the purpose 	of 	representing employees 	in
Unit 	13 	during working hours without 	loss 	of
compensation, 	subject 	to prior notification
and 	approval 	by 	his/her 	immediate
supervisor.
12

Neither 	of 	these 	sections 	even 	remotely 	cover 	the 	subject matter
of 	the 	3519(b) 	allegations 	in the 	complaint and therefore do not
support deferral.
Allegations 	of violations of 	section 3519(a) 	and 	(b) 	in Unit
12 and 3519(b) 	in Unit 13 	are not deferrable. 	Allegations of
violations 	of 	section 3519(a) 	in Unit 	13 	are dismissed and
deferred 	to 	arbitration.
Rights 	to Wear Union Buttons
Section 3515 provides, 	in pertinent part, 	that 	state
employees:
. 	. 	. 	shall have the right to form, 	join and
participate 	in 	the activities 	of 	employee
organizations 	of 	their own choosing 	for 	the
purpose 	of 	representation on all matters 	of
employer-employee 	relations.
Section 	3515.5 	provides 	corresponding 	rights 	of unions 	to
represent 	their members. 	Section 3519(a) 	and 	(b) 	makes 	it
unlawful 	for 	the 	state employer to 	impose 	reprisals upon,
interfere with or restrain employees because 	of 	the 	exercise 	of
their 	rights 	or 	to 	deny employee 	organizations 	rights 	guaranteed
by the Act. 	In a case such as 	this, 	involving allegations 	of
interference, 	a violation will 	be 	found when the 	employer's 	acts
interfere 	or 	tend 	to 	interfere with 	the 	exercise 	of 	protected
rights 	and the 	employer 	is unable 	to 	justify its 	actions by
proving 	operational 	necessity. 	(Carlsbad Unified School 	District
(1979) 	PERB Decision No. 	89 	(Carlsbad);6 Novato Unified School
6The 	Carlsbad test 	for interference provides, 	in pertinent
part:
13

District 	(19 82) 	PERB Decision No. 	210 	rev. 	den. 	1-10-83; 	Regents
of 	the University of 	California 	(1983) 	PERB Decision No. 	308-H;
State 	of 	California 	(Department 	of 	Corrections) 	(1980) 	PERB
Decision No. 	127-S.)
(2) 	Where 	the 	charging party 	establishes
that 	the 	employer's 	conduct 	tends 	to 	or 	does
result 	in 	some 	harm 	to 	employee 	rights
granted under the 	[Act], 	a prima 	facie 	case
shall 	be 	deemed 	to 	exist;
(3) 	Where 	the harm to 	the 	employees' 	rights
is 	slight, 	and 	the 	employer offers
justification 	based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer 	and
the 	rights 	of 	the 	employees 	will 	be 	balanced
and 	the 	charge 	resolved 	accordingly;
(4) 	Where 	the 	harm 	is 	inherently destructive
of 	employee 	rights, 	the 	employer's 	conduct
will 	be 	excused 	only 	on proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course 	of 	action was 	available;
(5) 	Irrespective of 	the 	foregoing, 	a 	charge
will 	be 	sustained where 	it 	is 	shown 	that 	the
employer 	would 	not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an 	unlawful
motivation, 	purpose or intent.
- -
Absent 	certain 	special 	circumstances 	which will 	be 	discussed
later 	in 	this 	decision, 	the wearing 	of 	union buttons 	is 	a
protected 	right. 	In 	the 	private 	sector 	the 	National 	Labor
Relations 	Board 	(NLRB) 	has 	found 	that 	absent 	special
circumstances, 	if 	evidence 	of 	a purpose 	protected by 	the Act 	is
shown, 	the wearing 	of 	union buttons 	will 	be protected. 	(Pay'N
Save Corp. 	v. 	NLRB 	(9th Cir. 	1981) 	641 	F.2d 	697 	[106 	LRRM 3 0 4 0 ] ;
NLRB v. 	Harrah's 	Club 	(9th Cir. 	1964) 	337 	F.2d 	177 	[57 	LRRM 2198]
(Harrah's C l u b ) . 	See also, 	Republic Aviation Corp. 	v. 	NLRB
14

(1945) 	324 U.S. 	793 	[16 LRRM 620], 	where the Court cited with
approval 	the NLRB's 	finding 	that 	"[t]he 	right 	of 	employees 	to
wear union 	insignia 	at work has 	long been recognized as 	a
reasonable and legitimate 	form of union activity, 	and the
respondent's 	curtailment 	of 	that 	right 	is 	clearly violative 	of
the Act." 	(Id. 	at 	fn. 	7.)
-
In the 	Federal 	sector, 	the 	Federal 	Labor Relations Authority
(FLRA) 	has 	concluded that wearing a union button demonstrates
employee 	support 	for the 	labor union, 	showing pride and
affiliation and therefore, 	absent special 	circumstances, 	is
protected. 	(U.S. 	Dept, 	of Justice v. 	FLRA 	(5th Cir. 	1992) 	955
F.2d 998 	[139 	LRRM 2820] 	(Justice v. 	FLRA).)
PERB 	has 	also 	recognized an employee's 	right 	to wear union
buttons. 	In State 	of 	California 	(Department of 	Parks and
Recreation) 	(1983) 	PERB Decision No. 	328-S, 	the Board found that
a union 	steward within the Department 	of 	Parks 	and Recreation had
been 	retaliated 	against 	when being 	evaluated 	for promotional
opportunity. 	A few months prior to the 	evaluation, 	the employee,
had worn a union button. 	The 	employee's 	supervisor asked him to
remove the button. 	The employee obeyed the order, 	but 	later, 	on
the advice of his union, 	put 	the button back on his uniform. 	The
supervisor again ordered the 	employee 	to 	remove 	the button, 	but
later 	reversed 	himself 	after 	consulting 	with 	the 	Department's
labor 	relations 	officer.
In reviewing 	the 	employee's protected activity, 	the Board
stated:
15

- -
Based upon 	[the employee's] 	job steward
activities, 	including the union button
incident 	. 	. 	. we conclude that 	[the
employee] 	produced sufficient 	evidence 	to
meet 	this aspect 	of 	the 	test.
(supra, 	at p. 	11.)
Furthermore, 	the Board also viewed the 	supervisor's 	conduct,
in ordering the 	removal 	of 	the union button, 	as pretextual 	and
evidence of anti-union animus, 	supra, 	pp. 	12 	& 17. 	Had wearing a
union button not been a protected right, 	ordering 	its 	removal
would not 	have 	evidenced anti-union animus, 	nor been 	found to be
pretextual.
IUOE 	asserts 	two additional 	arguments 	for 	concluding 	that
wearing union buttons 	is a protected right. 	The 	first 	is 	that
the 	right 	to wear a union button 	is 	constitutionally protected by
the 	first amendment. 	That argument has been rejected, 	however,
on the grounds 	that 	such prohibitions 	do not 	attempt 	to 	regulate
off-duty speech, 	but are addressed to appearance, 	and as 	such,
have 	only incidental 	effects 	on speech. 	(INS v. 	FLRA 	(9th Cir.
1988) 	885 	F.2d 1449 	[129 LRRM 2256] 	(INS v. 	FLRA); 	Justice v.
FLRA. )
IUOE also argues 	that 	the Department's 	regulations 	are
enforced 	inconsistently 	and 	in 	a manner 	discriminating 	against
unions. 	IUOE 	cites 	the wearing of 	Smokey-the-Bear buttons,
United Way buttons, 	necklaces, 	and religious emblems and medals
as 	examples of 	inconsistent enforcement. 	The facts, 	however, 	do
not 	support 	such an argument. 	Smokey-the-Bear buttons 	are worn
and handed out 	to 	the public 	as part 	of 	the Department's
educational 	programs. 	United Way pins 	are worn as part 	of 	a
16

State 	and Department 	sponsored 	charitable 	fund 	raising 	program.
The evidence of 	religious medals was 	speculation by Chavez, 	who
had never actually seen such medals 	or emblems 	worn, 	but 	thought
that 	they would have been allowed. 	Later, 	after having 	reviewed
the uniform policy, 	Chavez 	corrected his 	testimony and 	said 	that
such medals would not be allowed. 	Chavez 	did testify that 	he had
seen a necklace worn, 	which would be 	contrary to 	the policy.
However, 	such an 	incidental 	departure 	from an otherwise
consistently 	enforced 	rule 	is 	isolated 	and 	insufficient 	to
invalidate the rule 	itself. 	Therefore, 	employee and union rights
regarding 	the wearing 	of 	union buttons 	do not 	accrue 	due 	to
inconsistent 	application 	of 	the policy within 	the unit.
Even 	though 	this 	policy 	is 	a 	longstanding uniform policy,
implemented well before 	the 	IUOE 	sought 	to organize 	the unit, 	and
enforced 	in a 	consistent manner without 	evidence 	of 	anti-union
animus, 	it nevertheless 	interferes with the protected rights 	of
the 	IUOE 	and of 	employees. 	The policy 	causes 	harm to 	IUOE and
employee 	rights 	and pursuant 	to Carlsbad, 	the burden of 	showing
operational 	necessity shifts 	to 	the 	State.
The 	State bases 	its 	operational 	necessity on 	its 	strong
interest 	in having a uniformed workforce. 	According 	to 	the
State, 	the purpose 	of 	the uniform is 	to 	identify the wearer as 	a
member of 	the Department 	of 	Parks and Recreation, 	to 	improve 	the
Department's 	public 	image by achieving 	high 	standards 	of 	uniform
appearance, 	and, 	to promote pride in the organization. 	The State
also 	expressed 	its 	desire 	to maintain politically neutral
17

uniforms, 	thereby avoiding 	controversy among park users 	who might
be 	offended by union buttons.
The 	courts 	have 	considered a number 	of 	factors 	when
presented with the 	issue 	of 	employers 	prohibiting 	the wearing 	of
union buttons 	or 	insignia at work. 	Courts 	have 	reviewed the
circumstances 	in which buttons 	are worn, 	the nature 	and physical
appearance of pins 	or buttons, 	the nature of 	the employer's
activities 	and the need 	for production, 	safety and discipline.
(Justice v. 	FLRA.) 	In cases where 	special 	circumstances 	have
created 	an 	operational 	necessity which 	justified 	a 	prohibition,
there 	has 	been evidence 	that 	wearing union buttons 	or 	insignia
has 	disrupted 	the 	employer's 	operations 	or maintenance 	of 	safety
or discipline.
Special 	circumstances 	justifying a prohibition 	of 	union
buttons or insignia existed where: 	(1) 	the buttons 	could
jeopardize employee's 	safety 	(Andrews Wire 	Corporation 	(1971) 	189
NLRB 108 	[76 LRRM 1568].); 	(2) 	damaged machinery or products
(Campbell 	Soup Company 159 	NLRB 	74 	[62 	LRRM 1352, 	enforced in
part, 	enforcement denied in part on other grounds, 	(5th Cir.
1967) 	380 F.2d 372 	[65 LRRM 2608]); 	(3) 	exacerbate employee
dissension 	(United Aircraft Corp. 	(1961) 	134 NLRB 1632 	[49 	LRRM
1384]); 	(4) 	cause distraction from work demanding great
concentration 	(Fabri-Tek. 	Inc. 	v. 	NLRB 	(8th Cir. 	1965) 	352 	F.2d
577 	[60 LRRM 2376]); 	(5) 	disrupt the uniformity, 	discipline, 	or
appearance 	of 	neutrality 	among 	para-military 	law 	enforcement
employees 	(Justice v. 	FLRA); 	or 	(5) 	damage the image to the
. . . . '
18

public by 	the 	employees 	coming 	into 	contact 	with 	the public 	in
the 	absence 	of 	a protected purpose 	(Harrah's 	Club and Burger King
Corp. 	v. 	NLRB 	(6th Cir. 	1984) 	725 	F.2d 1053 	[115 LRRM 2387]
(Burger 	King).
Respondent 	bases 	its 	argument 	for operational 	necessity
primarily upon three cases: 	Harrah's Club; 	Burger King: 	and INS
v. 	FLRA. 	All 	three of these cases, 	however, 	can be distinguished
from the case at hand. 	First, 	in all of these cases, 	the
employees 	in question were 	considered public 	contact 	employees.
In Burger King, 	the 	employee 	in question staffed a 	fast 	food
restaurant's 	drive-thru window and 	thus 	had 	direct 	and 	continuous
contact with customers as part 	of 	the 	employee's primary duties.
In Harrah's 	Club, 	the employees 	in question were waiters whose
job was 	to 	serve 	customers 	in the 	employer's 	theater 	showroom.
In INS v. 	FLRA, 	the 	employees 	in question inspected members 	of
the public and their vehicles 	for contraband. 	The 	court 	placed
great 	emphasis upon 	the 	fact 	that 	the 	employees were 	law
enforcement 	agents 	with 	frequent public 	contact.7 The 	continuous
public 	contact 	which was 	a 	regular part 	of 	the 	duties 	of 	the
employees 	in these 	three 	cases makes 	them more 	similar to 	the
Department's 	visitor 	services 	personnel 	than to 	the maintenance
employees 	who have 	only 	incidental 	contact 	with 	the public.
-
7See also Justice v. 	FLRA, 	where 	the 	court 	specifically
created a 	"special 	circumstance" 	because 	of 	the para-military 	law
enforcement nature of 	the 	employees 	in question. 	In the 	case at
hand, 	however, 	the employees are not a para-military police unit.
They are plumbers, 	painters, 	mechanics, 	refuse collectors and
other 	similar maintenance 	employees 	who would not 	be 	prohibited
from wearing union buttons 	under Justice v. 	FLRA.
19

Additionally, 	Harrah's 	Club 	can be distinguished because 	the
court 	found 	the 	record 	totally devoid 	of 	any evidence 	that
wearing union buttons 	served any protected purpose. 	The 	court
stated:
The 	record shows 	that 	the wearing 	of union
buttons 	was not part 	of 	any concerted
campaign to organize the employees, 	or to
promote 	collective bargaining, 	or to gain
better hours, 	wages, 	or working conditions.
There 	is 	no background of 	labor unrest 	in
respondent's 	establishments, 	and respondent
for many years 	has 	had a 	collective
bargaining agreement 	with 	the union 	in
question.
In 	the 	instant 	case 	there were 	clearly articulated purposes
for wearing union buttons. 	In Unit 	12, 	the 	IUOE had just won a
decertification 	election 	and was 	trying 	to 	establish 	a presence
among its new members. 	In both Units 	12 	and 13, 	the 	IUOE was
seeking 	to 	build 	constituency 	support 	for upcoming bargaining 	and
trying 	to 	identify 	job 	stewards 	to members 	who might 	not 	be
familiar with 	them.
INS v. 	FLRA can also be 	distinguished because 	the 	court
based 	its 	decision primarily upon an 	interpretation 	of 	a 	federal
statutory management's 	rights 	clause which does 	not 	exist 	in 	the
Dills Act.
The 	State 	also argues 	that 	an 	operational 	necessity 	is
created by 	its 	desire 	to keep 	the uniforms 	politically neutral,
thus 	avoiding antagonizing any members 	of 	the public who might 	be
offended by the union button. 	This 	is not a persuasive argument.
The legislature has, 	by statute, 	determined that employees have a
right 	to be 	represented by employee 	organizations. 	This 	includes
20

the right 	of 	employees to show their allegiance to, 	and
solidarity with, 	other members 	and 	the 	organization.
Furthermore, 	the 	legislature has 	determined that 	collective
bargaining 	is 	a 	reasonable method 	of 	resolving 	disputes 	and will
promote 	the 	improvement 	of 	employer/employee 	relations 	within 	the
State 	of 	California. 	The 	fact 	that 	some members 	of 	the public
may 	find 	that 	offensive 	is 	not 	sufficient 	justification 	to 	deny
employees 	their rights.
I 	conclude, 	therefore, 	that 	the Department has not met 	its
burden 	of 	demonstrating an 	operational 	necessity which would
justify 	the 	harm caused 	to 	employee 	and union 	rights 	by 	the
prohibition of union buttons.
Assuming for the sake of argument, 	however, 	that the
Department 	had 	shown 	some 	operational 	necessity 	for 	the ban 	on
buttons, 	a balancing pursuant 	to Carlsbad, 	of 	the 	competing
interests 	of 	the Department 	with 	the 	harm to employee 	and union
rights, 	also results 	in finding a violation. 	The buttons were
inconspicuous 	and unobtrusive. 	There was 	no possibility that
they would 	confuse 	the public 	by 	creating 	the 	impression 	that 	the
employees 	were 	not 	employed by 	the Department 	of 	Parks 	and
Recreation. 	The 	employees 	all 	wore 	large and brightly 	colored
departmental 	patches 	on each sleeve, 	clearly identifying 	them as
Department 	employees. 	There was 	no 	evidence whatsoever that 	the
buttons 	were 	a potential 	safety hazard, 	interfered with 	employer
production or department 	operations, 	or exacerbated employee
dissension in any way. 	Finally, 	these employees, 	unlike visitor
21

services personnel, 	have 	only incidental public 	contact.
These 	factors, 	combined with the legitimate purposes 	of
promoting awareness 	of 	the 	new exclusive 	representative 	among a
newly obtained unit, 	of 	clearly identifying 	job 	stewards 	to 	a
membership unfamiliar with 	their 	identify, 	and of 	building
support 	for upcoming bargaining, 	tip 	the 	scales 	in favor of 	IUOE
and employee 	rights 	to wear the button, 	and supports a 	finding of
a violation of 	section 3519(a) 	of 	the Dills Act.
In order to prevail 	on allegations 	of 	3519(b) 	violations,
IUOE must 	establish a denial 	of 	its 	rights 	separate and apart
from the 	rights 	of 	individual 	employees. 	(State 	of 	California
(Franchise Tax Board) 	(1992) 	PERB Decision No. 	954-S.) 	IUOE has
met 	that burden. 	In distributing union buttons 	to employees, 	the
IUOE 	had an 	organizational 	purpose 	of 	building visible 	support
for 	its 	role 	in the upcoming negotiations 	as well 	as building an
awareness 	of 	the 	identity of 	its 	stewards. 	In being denied these
particular organization tools, 	the 	IUOE 	itself 	has been denied a
valuable 	right 	separate 	and 	independent 	of 	the 	corresponding
rights 	of 	employees and stewards 	to wear the buttons.
Furthermore, 	denying stewards 	this method of 	identifying
themselves 	to members 	who may be 	in need of 	representation also
denies 	the 	IUOE a 	right 	essential 	to 	its 	role as 	representative
of 	those employees.8
8The 	employer contends 	that 	this 	is 	not 	a legitimate
organizational 	objective 	since 	the 	IUOE 	could have utilized 	other
methods 	such as bulletin boards 	or the mail 	to 	identify stewards.
However, 	the 	existence of possible alternative methods 	not
utilized by 	the 	IUOE 	does 	not make 	this 	particular method any
less 	legitimate.
22

. . .
Waiver 	Issue
The Department 	sets 	forth 	the additional 	defense 	of waiver.
The employer argues 	that 	in the 	course of negotiations, 	the
parties 	signed 	off 	on an agreement 	covering uniform guidelines
for Unit 	12 	personnel. 	Since 	the precise 	issue of wearing union
buttons was 	raised by the 	IUOE and rejected by the State, 	it was,
according 	to 	the 	employer, 	a 	clear and unmistakable waiver of 	the
right 	to wear union buttons.
This 	argument 	is 	rejected. 	The 	discussion and agreement
referred 	to by 	the 	employer was 	outside 	the 	collective bargaining
process. 	The parties 	specifically chose not 	to negotiate 	the
issue 	of 	uniforms 	during 	the 	contract negotiations. 	Although at
the hearing, 	the 	employer argued that 	the new grooming standards
were 	to be 	implemented when the MOU was 	implemented, 	the 	only
evidence 	of any such agreement was hearsay and thus, 	does not
support 	such a 	conclusion.
The 	IUOE was 	seeking 	to 	include what 	it 	felt 	is 	a 	statutory
right 	into 	the Department's 	grooming policy. 	When a union drops
a proposal 	which seeks 	to 	codify 	statutory 	rights 	into 	the MOU,
that 	conduct 	will 	not 	be 	seen as 	a 	clear and unmistakable waiver
of 	its 	statutory rights. 	In the 	face of 	the Department's
rejection of 	its proposal, 	dropping the proposal 	does not bar the
union 	from seeking 	the 	statutory 	right 	through other vehicles,
such as 	this unfair practice proceeding. 	If making 	such a
proposal 	and 	then dropping 	it 	would 	forego 	any 	statutory 	rights
on 	the 	issue, 	unions would be 	seriously discouraged 	from ever
23

- -
making 	such proposals, 	thus 	impeding 	the 	collective bargaining
process. 	(Los Angeles Community College District 	(1982) 	PERB
Decision No. 	252) . 	Furthermore, 	a claim of waiver is an
affirmative defense, 	therefore, 	the State has the burden of
proof. 	Any doubts must be 	resolved against 	the State. 	(Morgan
Hill Unified School District 	(1985) 	PERB Decision No. 	554,
California Evidence 	Code 	section 500.) 	The 	State has 	not met 	its
burden of 	showing 	that 	the 	IUOE 	consciously yielded 	its 	interest
in pursuing 	its 	statutory rights 	through other methods.
CONCLUSION
IUOE 	has 	established that 	both employee 	and 	IUOE 	rights 	were
interfered with when 	the 	State 	prohibited maintenance 	services
personnel 	within 	the Department 	of 	Parks 	and Recreation 	from
wearing union buttons. 	There are no 	special 	circumstances 	in
this 	case 	justifying 	the prohibition and 	the 	State 	has 	been
unable 	to demonstrate 	an operational 	necessity 	for 	its
prohibition. 	The 	IUOE did not, 	during the bargaining process,
waive 	its 	right 	to 	seek enforcement 	of 	these 	rights 	through an
unfair practice 	hearing.
In Unit 	12, 	there was no MOU in effect between 	IUOE and the
State at 	the time of 	the violations. 	Therefore, 	neither the
section 3519(a) 	or 	(b) 	allegations are deferrable. 	In Unit 	13,
the MOU 	in effect 	provides 	individual 	employees 	with protection
against 	retaliation and 	interference 	by 	the 	State 	and 	therefore
the 	section 3519(a) 	allegations must be deferred 	to arbitration.
In Unit 	13, 	the 	IUOE has, 	however, 	established a violation of 	its
24

3519(b) 	rights 	separate and apart 	from the deferrable 	rights 	of
individual 	employees.
REMEDY
Pursuant to the Ralph C. 	Dills Act section 3514.5 (c), 	the
Board 	is 	given:
. 	. 	. 	the power to issue a decision and
order 	directing 	an 	offending party 	to
cease 	and desist 	from the unfair
practice 	and 	to 	take 	such affirmative
action, 	including but not 	limited to the
reinstatement 	of 	employees 	with or
without back pay, 	as will 	effectuate 	the
policies 	of 	this 	chapter.
In cases 	such as this, 	it 	is appropriate to direct 	the State
to 	cease 	and desist 	from denying 	IUOE 	and employee 	rights 	by
prohibiting maintenance 	services personnel 	in Units 	12 	and 	13
from wearing union buttons 	on their uniforms. 	It 	is also
appropriate 	to 	order 	the 	State 	to 	remove 	any disciplinary action
on this 	issue 	from employees' 	personnel 	files. 	In particular,
the 	State 	should 	remove 	from the personnel 	file 	of 	Keith Kessler
that portion of 	the June 2, 	1992 	corrective 	interview letter
which 	is 	based upon 	Kessler's 	wearing 	of 	a union 	steward button.
It 	is 	also appropriate 	that 	the 	State be 	required to post 	a
notice 	incorporating the 	terms 	of 	the 	order. 	The Notice 	should
be 	subscribed by an authorized agent 	of 	the Department,
indicating 	that 	it will 	comply with the 	terms 	thereof. 	The
Notice 	shall 	not be 	reduced 	in size. 	Posting 	such a notice will
provide 	employees 	with notice 	that 	the 	State has 	acted 	in an
unlawful 	manner and 	is 	being 	required 	to 	cease 	and desist 	from
this 	activity and will 	comply with the 	order. 	It 	effectuates 	the
25

purposes 	of 	the Ralph C. 	Dills Act 	that 	employees be 	informed of
the 	resolution of 	the 	controversy and will 	announce 	the 	State's
readiness 	to 	comply with the 	ordered remedy. 	(Davis Unified
School District, 	et al. 	(19 80) 	PERB Decision No. 	116;
Placerville Union School District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in this 	case, 	the State has been found to
have violated the Ralph C. 	Dills Act 	(Act), 	Government Code
section 3519(a) 	and 	(b). 	Pursuant 	to Government Code section
3514.5, 	it 	is hereby ordered that 	the State of California
(Department 	of 	Parks 	and Recreation) 	and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Prohibiting maintenance 	services personnel 	in Units
12 	and 	13 	from wearing union buttons 	on their uniforms.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
1. 	Remove 	any disciplinary action based upon 	the
wearing 	of union buttons 	from the personnel 	files 	of Unit 	12 	and
13 personnel.
2. 	Within ten 	(10) 	workdays of 	service of a final
decision 	in this matter, 	post at all 	work locations where notices
to State 	employees 	are customarily placed, 	copies 	of 	the Notice
attached hereto as 	an Appendix. 	The Notice must 	be 	signed by an
authorized agent 	of 	the State 	of 	California 	(Department 	of 	Parks
and Recreation) 	indicating 	that 	the 	State will 	comply with the
26

terms 	of 	this 	Order. 	Such posting 	shall 	be maintained 	for a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken to 	insure 	that 	the Notice 	is 	not 	reduced 	in size,
altered, 	defaced or 	covered by any other material.
3. 	Upon issuance 	of a 	final 	decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	the 	Order with
the 	Sacramento 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with 	the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within 20
days 	of 	service 	of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually received before 	the 	close 	of business 	(5:00 	p.m.) 	on 	the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of
Regs., 	tit. 	8, 	sec. 32135; 	(Cal. Code of Civ. Proc. sec. 	1013
shall 	apply.) 	Any statement 	of 	exceptions 	and supporting brief
must 	be 	served 	concurrently with 	its 	filing upon 	each party 	to
this proceeding. 	Proof 	of 	service 	shall 	accompany each copy
27

served on a party or filed with the Board 	itself. 	(See 	Cal. 	Code
of Regs., 	tit. 	8, 	secs. 	32300, 	32305 and 32140.)
James W. 	Tamm
Administrative 	Law 	Judge
28
I ,