Tuesday, October 7, 2003
District May Ban Teachers’ Union Buttons, C.A. Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
A school district may ban teachers from wearing union buttons during the school day, unless agreed otherwise through collective bargaining, the Fifth District Court of Appeal has ruled.
The panel ruled Friday in favor of the Turlock Joint Elementary School District, overturning a contrary decision by the Public Employment Relations Board. Justice Rebecca Wiseman, writing for the appellate panel, said PERB erred in holding that the school board committed an unfair labor practice by banning the wearing of the buttons.
The Turlock Teachers Association filed an unfair labor practice charge with PERB after the district banned the buttons, which bore the words “Turlock Schools” across the top and the numbers 9, 11 and 14 below, with the union’s initials in between.
The numbers on the buttons, which the union asked members to wear during slow-moving contract negotiations three years ago, signified the union’s assertion that its members had slipped from the highest-compensated teachers in the county to numbers 9, 11, and finally 14 over time.
In banning the buttons, the district cited its policy against “political activity” during the school day.
Wiseman rejected the district’s contention that PERB clearly erred in interpreting the Educational Employment Relations Act as permitting teachers to wear the buttons. The EERA is interpreted in accordance with National Labor Relations Act case law, the justice noted, which treats the wearing of union buttons as protected activity.
PERB, however, failed to give proper consideration to an Education Code section allowing school districts to ban political activity, Wiseman concluded. Because Education Code Sec. 7055 is not part of the EERA, and thus outside PERB’s area of expertise, the court is not required to defer to PERB’s interpretation, the justice added.
Public employee union activity is, by its very nature, “political,” the justice concluded. She cited Abood v. Detroit Board of Education (1977) 431 U.S. 209, in which the court explained:
“[D]ecisionmaking by a public employer is above all a political process. The officials who represent the public employer are ultimately responsible to the electorate....Through exercise of their political influence as part of the electorate, the employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table. Whether these representative accede to a union’s demands will depend upon a blend of political ingredients, including community sentiment about unionism generally and the involved union in particular, the degree of taxpayer resistance, and the views of voters as to the importance of the service involved and the relation between the demands and the quality of service....
“There can be no quarrel with the truism that because public employee unions attempt to influence governmental policymaking, their activities...may be properly termed political.”
“We hold that the wearing of union buttons by teachers while instructing in the classroom falls within the definition of ‘political activity’ set forth in Education Code section 7055 and may therefore be restricted by a school district. The union buttons pertained to conduct of the board of trustees of the District, a governmental entity. The purpose of wearing them was for teachers to attempt to persuade the governing board of trustees to change its position at the bargaining table. In short, TTA attempted to influence and modify District policy and budgetary choices. A school district’s restriction of labor relations disputes to prevent such disputes from spilling over into the classroom is a proper restriction of political activity under Education Code section 7055.”
Wiseman was joined by Justice Nikolas Dibiaso and Gene Gomes.
In a separate section of the opinion, Wiseman, joined by Gomes, expressed concern that “under our holding, a school district can restrict a teacher from wearing a union button into the classroom even when the teacher takes steps to ensure there is no political discussion or disruption related to the button.”
Wiseman noted that the district retains discretion over whether to ban the buttons, and that unions may negotiate for a contract provision that allows the wearing of buttons.
The case is Turlock Joint Elementary School District v. Public Employment Relations Board (Turlock Teachers Association), 03 S.O.S. 5292.
Copyright 2003, Metropolitan News Company