Employees in the City of Sacramento’s Maintenance Services Division (MSD) are required to wear hardhats while working. Six of the seven MSD sections exclusively use a white, full-brimmed hardhat manufactured by ERB Industries (ERB) bearing the City seal. ERB affixes the seal by applying ink directly to the hardhat before shipping the hardhats to the City. An ERB warning label inside each hardhat states “Do not apply adhesive. These chemicals may weaken the shell.” Despite this warning, MSD employees sometimes attach headlamps to their ERB hardhats using clips and removable adhesive. The City provides employees in the seventh MSD section an orange hardhat manufactured by Petzl. Like the ERB hardhats, Petzl cautions against applying chemical adhesive or stickers to its hardhats unless those are supplied or recommended by Petzl.
All MSD employees are expected to inspect their hardhat each day before use; however, management is responsible for deciding when to retire or replace a hardhat. In 2016, an MSD Operations General Supervisor became concerned that it was unsafe to adorn the hardhats with any stickers, decals, or paint because these substances could hinder their inspection for signs of wear, cracks, and other deterioration.
In April 2017, the MSD circulated a memorandum to some employees providing that “So as to not compromise the integrity of the protective shell, hardhats must be free of stickers, decals, or any other markings (except for the City seal) and not be painted.” Prior to this memorandum, the MSD did not have a written policy regarding the placement of stickers or paint on hardhats. Employees were, however, permitted to wear union pins and other insignia on their work uniforms or other personal property.
The City notified Stationary Engineers Local 39 (Local 39) – an employee organization representing some MSD employees – of the written hardhat policy. Local 39 asserted that the City’s policy would infringe on employees’ rights to place union insignia on their hardhats. After the City distributed the policy, Local 39 filed an unfair practice charge against the City. The Administrative Law Judge (ALJ) dismissed the charge, finding the policy was justified by the City’s legitimate concerns for employee safety. Local 39 subsequently filed exceptions with the Public Employment Relations Board (PERB).
California public employees have long had the right to wear union insignia in the workplace. A restriction on the right to display union insignia and messages regarding working conditions is presumptively invalid. Instead, an employer may prohibit employees from displaying union insignia and messages in the work place only if “special circumstances” exist to justify the prohibition. The employer has the burden of establishing that its policy is justified by special circumstances. PERB has outlined several factors to determine whether such circumstances exist, including whether the insignia could jeopardize employee safety, disrupt employee discipline, or negatively affect the employer.
In this case, PERB found that the City could not establish any foreseeable safety issues arising from stickers on hardhats. PERB reasoned that while employees were required to inspect their hardhats every day, neither the applicable memorandum of understanding nor the MSD policies prescribed any regular inspection of hardhats. Thus, PERB reasoned that the City had not “shown so great a safety-related concern for dented, gouged, or otherwise damaged hardhats that would institute regular and closer inspections of them.”
Further, PERB noted that it was undisputed that some MSD employees affixed headlamps to their hardhats using clips and removable adhesive. The City presented no evidence that the adhesive used to affix the headlamps had been supplied by the manufacturer; had damaged the hardhat; or had prevented employees from detecting such damage. PERB also explained that this history of adhesive use on hardhats without incident also weighed against finding special circumstances.
Accordingly, PERB found the City failed to carry its burden of establishing safety-based special circumstances justifying its policy completely banning stickers, decals, and paint on MSD employees’ hardhats. Thus, PERB determined that the City’s policy interfered with employees’ and Local 39’s rights under the MMBA.
City of Sacramento, PERB Decision No. 2702-M (2020).
Note:
This case demonstrates that an agency has the burden of proving that special circumstances justify prohibiting union insignia. That proof must include concrete evidence that it is foreseeable that employee safety will be threatened by displaying the insignia and that the agency has acted consistently with its stated concern.
