County of Sacramento (2014) PERB Decision No. 2393-M (Issued on 10/16/14)
This case involved the Aircraft Rescue and Firefighting Division bargaining unit of the County of Sacramento. The firefighters in this bargaining unit are represented by Local 522 of the International Association of Firefighters (Local 522). Local 522 provides its members a “Class B” t-shirt and hat bearing the union logo. In 2011, the County issued a directive stating that t-shirts and hats bearing the union logo were not approved to be worn while on duty. The decision referred to this rule as the “No Union Logo” policy. The union promptly filed an unfair practice charge over this policy alleging that it interfered with protected rights.
The administrative law judge (ALJ) issued a proposed decision dismissing the unfair practice charge. The ALJ acknowledged the general rule that employees have a right to wear union buttons or pins, absent special circumstances. However, the ALJ held that this general right did not apply to the uniform of a firefighter, who is a public safety employee.
The Board rejected this approach. In its decision, the Board held that the general rule announced in State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S (Parks), is not limited to buttons and pins. The Board also held that the Parks decision is not limited to any particular article of clothing, as thus equally applies to public safety employee uniforms. Accordingly, the Board held that, “firefighters have a statutorily protected right to wear Class B uniform apparel bearing the Local 522 logo, while on duty.” The Board went on to state that, “Through this form of expression, they are able to demonstrate, in a visible and positive manner, their union solidarity and pride.” As for the argument that employers have an interest in maintaining uniformity among public safety uniforms, the Board cited to language in the Parks case which generally rejected such concerns.
Although the Board had little trouble extending the Parks rule to include public safety uniforms, the Board did emphasize that the general rule is subject to a “special circumstances exception.” But the Board repeatedly stated that such an exception is narrow and that policies that curtail an employee’s right to wear union insignia at work are “presumptively invalid.” In this case, the Board noted several times that the County did not assert a special circumstances defense, and therefore the Board did not have to decide whether such an exception existed in this case.
- The impact of this decision remains to be seen. I think an argument can be made that this is a very narrow decision based on a narrow set of facts. For example, the decision notes that Local 522 did not seek to wear the union logo on the Class A uniform or on most of the Class B uniform that is visible to the public. Also, the Board repeatedly stated that the “special circumstances” exception was not at issue. So it remains to be seen how strict the Board will be when an employer attempts to use the special circumstances exception. While the Board stated that speculative evidence would be insufficient, I certainly hope the Board does not demand there to be some actual harm to the public before the special circumstances exception will apply.
- While the Board cited to long-standing precedent under federal law, I still think there are good public policy reasons why the general rule on displaying union insignia should not be extended to public safety uniforms. Or at a minimum, I think the “special circumstances” test must be applied a little differently when dealing with public safety employees. For example, especially when dealing with police uniforms, I think the Board has to give some deference to the idea of maintaining uniformity. However, we’ll have to wait for another case to see how the Board deals with these issues.