Employees May Be Barred From Sporting ‘Union Regalia’ in Courthouse

Monday, December 17, 2018

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Employees May Be Barred From Sporting ‘Union Regalia’ in Courthouse—C.A.

Fifth District’s Majority Says ‘Special Circumstances’—Court’s Need to Maintain Image of Impartiality—Justify Prohibition on Wearing Union Symbols

By a MetNews Staff Writer

The Fifth District Court of Appeal partially granted a writ of review sought by the Fresno Superior Court. Invalidating a determination by the Public Employment Relations Board, it held that a ban on court employees wearing union insignia may lawfully be imposed.

Court employees may permissibly be barred from wearing clothing or sporting pins with union insignia anywhere in the courthouse, the Fifth District Court of Appeal held Friday, countermanding a decision of the Public Employment Relations Board.

That board—known as “PERB”—on Feb. 27, 2017, invalidated various personnel policies of the Fresno Superior Court, agreeing with the Service Employees International Union Local 521 that they violate the Trial Court Employment Protection and Governance Act, thus constituting unfair practices. The Superior Court, assuming the unusual role of a litigant, filing a “petition for a writ of extraordinary relief” in the Court of Appeal.

Construed as a petition for a writ of review, it was partially granted. Writing for himself and Justice Herbert I. Levy, Presiding Justice Brad R. Hill said:

“[W]e find Court has a substantial interest in regulating its workforce to ensure that the judicial process appears impartial to all appearing before it. Under the existing law and the facts presented regarding interactions with the public in the relevant courthouses, this interest is sufficient to justify the broad restrictions on employee clothing adopted in this case. Furthermore, we conclude, contrary to PERB’s findings, that the bans on soliciting during working hours and displaying images in areas visible to the public are not ambiguous and thus were properly adopted.”

Leaving intact one determination by PERB, he added:

“However, we do agree with PERB that the regulations prohibiting the distribution of literature in working areas is ambiguous as to the meaning of ‘working areas.’ In line with this conclusion, we agree with PERB that separation of powers concerns do not prohibit PERB from imposing a remedy with respect to that regulation.”

Clothing Policy

The major purpose of the clothing/insignia policy was perceived as that of barring the display of union images in courtrooms. Hill alluded to it as a “restriction on union regalia.”

However, the policy was broadly worded, making no reference to the union. It proscribes “[c]lothing and/or adornments with writings or images, including but not limited to pins, lanyards, or any other accessories (except for Court-approved clothing and/or adornments bearing the Court logo).”

Hill said that it is established that employees have a right to wear union symbols at the workplace absent “special circumstances.” He observed that issues in the case “present the novel question of whether a trial court’s interest in the appearance of impartiality constitutes ‘special circumstances’ that justify a rule prohibiting employees from wearing union buttons, pins and insignia.”

Answering the question in the affirmative, he said:

“[A] trial court’s interest in appearing impartial constitutes special circumstances justifying restrictions on clothing and adornments worn by Court’s employees.”

Actions of court employees, he explained, can be construed by members of the public as reflective of government policy.

Appearance of Bias

Hill declared:

“The importance of a judiciary that is independent and unbiased in fact, as well as in appearance, cannot be overstated….The need to maintain a neutral appearance on behalf of the judicial system is a paramount concern….”

The jurist went on to say:

“The record in this case is replete with evidence that most, if not all, employees of Court will encounter or have a high likelihood of eventually encountering members of the public in their daily activities. While there are likely some positions that do not necessarily encounter the public, the open space nature of courthouses and the vast majority of the evidence shows that public encounters are neither infrequent nor unexpected. When coupled with the undeniably important interest Court has in ensuring the public is not presented with situations where Court’s impartiality could be reasonably questioned due to employee viewpoints, we believe the use of a broad ban on insignia and regalia in the workplace generally is appropriate in this instance. Specifically, we conclude that the broad ban adopted by Court is proper in this case based on the evidence of public contact for virtually all affected employees and the evidence showing broad public access to certain courthouses. We recognize that under different facts narrower scopes to regalia restrictions may be required.”

The same considerations, the jurist said, support the rule against a display of writings—such as on bulletin boards—visible to the public.

Questions of Ambiguity

The Fresno Superior Court’s ban on solicitations during “working hours,” Hill said, is not ambiguous, contrary to the PERB finding, explaining that it “means employees may not engage in solicitation during ‘working time’ but may engage in nondisruptive solicitation during nonworking time—that is, their duty-free periods.”

The prohibition on solicitations in “working areas,” however, is ambiguous, he found.

“It is possible to interpret the term ‘working areas’ as areas being used for Court’s business and to exclude those same locations when they are used during employee breaks,” he pointed out. “However, it also is reasonable to interpret the rule as banning distributions in ‘working areas’ at ‘any time,’ without regard to whether the area is being used for Court’s business at the time of the distribution.”

As presently worded, he declared, the policy cannot stand. To sustain PERB’s invalidation of the policy does not permit an encroachment onto the sovereign terrain of the judiciary, the jurist said, because the invalidation “will not defeat or materially impair a constitutional function of Court” and it should not take long to reword the policy to remove the ambiguity.

Concurring, Dissenting

Partially dissenting, JusticeDonald R. Franson Jr. wrote:

“Here, the majority upholds personnel rules banning all courthouse employees from wearing or displaying any item of union regalia. They conclude that wearing or displaying such items so evidences a pro-union bias or prejudice by the employees and the court that it undermines a fair and independent judicial system. With no evidence in the record to support this conclusion, the majority relies on a fundamental misconception—namely, that objective members of the courthouse public believe trial court employees who wear or display union items cannot be ethical, fair and impartial in carrying out their duties. This is where I part company with my colleagues and conclude the public can see a trial court employee wearing or displaying appropriate union regalia without reasonably doubting the impartiality of the employee or the court itself.”

Franson went on to say:

“The Court presented no evidence addressing the impact of union regalia on the public’s perception of the Court’s impartiality. The majority’s findings of fact on this issue are unsupported by any evidence. Simply put, those findings are the product of conjecture, speculation or perhaps the application of a subjective standard of reasonableness based on the supposed feelings of a hypersensitive observer.”

No Complaints Shown

He took particular note that the Fresno Superior Court “presented no evidence of complaints from litigants or other members of the public about employees wearing union regalia,” remarking:

“The absence of complaints and incidents is relevant to the existence of special circumstances and the specific issue of whether the appearance of impartiality justifies a total ban.”

The majority opinion contains a rejoinder. Hill wrote that concrete examples are not needed, commenting:

“Where the dissent would require cracks in the foundation of the public’s trust in the court system before permitting repairs, we believe it is more important, and legally permissible, to proactively protect the public’s trust in the court system before they have a real reason to doubt the institutions they trust to govern their disputes.”

The case is Fresno Superior Court v. PERB, F075363.