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Title: South Bay Teachers Association Section and South Bay Union School District
Date: January 2, 2006
Arbitrator:  John F. Wormuth
Citation: 2006 NAC 101

In the Matter of Arbitration
between

South Bay Union School District

and

South Bay Teachers Association Section
of the
South Bay/Eureka Teachers Association,
CTA-NEA



John F. Wormuth
Arbitrator

 

Arbitrator’s Case No.05-A-144
California State Mediation and
Conciliation Service
Case No. ARB-04-3206

January 2, 2006

 

INTRODUCTION

             This arbitration arises from a grievance filed by the South Bay Teachers   Association and the California Teachers Association, on behalf of itself and Jinnie Robershotte, hereinafter referred to as the Grievant, a certificated employee of the South Bay Union School District, whose classification is covered by the terms and conditions of the Collective Bargaining Agreement (CBA), in full force and effect between South Bay Union School District, hereinafter referred to as District, and South Bay  Teachers Association CTA/NEA, hereinafter referred to as the  Association. The subject of this arbitration is the June 15, 2005 grievance alleging a violation of Article 14 Personal and Academic Freedom, sections 14.1.1 and 14.1.2.   The Grievant alleges the District violated her contractual rights when it requested that she and affected unit members quit wearing  a Union button that read “Students Our Special Interest CTA/ NEA”.  (Assn. Ex. 3).  An additional violation of the agreement is alleged in that the District determined the statement on the button is political and not a communication for purposes of organizing unit members. 

            This arbitration was heard on October 11, 2005 commencing at 9:00 a.m. at the offices of The Humboldt County Office of Education, 901 Myrtle Ave, Eureka, California.

            The parties, from a list submitted by the California State Mediation and Conciliation Service, Case No. ARB 04-3206, unanimously selected John F. Wormuth as the Arbitrator in this arbitration to render a final and binding award.  The parties agreed that this arbitration was timely and properly before the Arbitrator and that all procedural requirements had been met.

            Closing briefs on behalf of the Association and the District were submitted and accepted.

 No other briefs or submissions were proffered and the Arbitrator requested none.  Prior to testifying, all witnesses were administered an oath or affirmation by the Arbitrator.   

Kirsten M. Bowns, CSR No. 10332, took the transcript of the hearing, which is the official record of this Arbitration. The Arbitrator did take detailed notes and prior to the taking of evidence, informed the parties that the notes of this arbitration are for the exclusive use of the Arbitrator and will not be shown to anyone. The record of this arbitration was closed on November 27, 2005, upon receipt of the closing briefs from both the Association and the District.

            The parties were given full opportunity to present evidence, examine and cross-examine witnesses, produce exhibits and present argument, and availed themselves of the opportunity to do so. There were no joint exhibits introduced. The Association introduced three Exhibits, marked 1 thru 3, and the District introduced one Exhibit, marked A.  The exhibits having been admitted into evidence are incorporated herein by reference.

APPEARANCES

ON BEHALF OF THE SOUTH BAY TEACHERS ASSOCIATION CTA/NEA

         AND THE GRIEVANT:  JINNIE ROBERSHOTTE:

Randall Perry
California Teachers Association
630 J Street, Eureka, CA 95501

ON BEHALF OF THE SOUTH BAY UNION SCHOOL DISTRICT:

Stephen L Hartsell, Esq.
Associate General Counsel
School & College Legal Services of California
901 Myrtle Avenue, Eureka ,CA 95501

ISSUE

            The parties submitted  the following issue statement for determination:

1)                 Did  the South Bay Union School District violate the Collective Bargaining Agreement when the Superintendent (directed)*  teachers to remove and discontinue wearing buttons that display the words:  “Students Our Special Interest –CTA/NEA “?

2)                 And what is the remedy?

RELEVANT CONTRACT LANGUAGE

 Article 14: PERSONAL AND ACADEMIC FREEDOM

14.1     “It is the policy of the Employer that all instruction shall be fair, accurate, objective, and appropriate to the age and maturity of the pupil(s) and sensitive to the community needs and the needs and values of our diverse cultures and heritages.”

14.1.1 “A unit member shall have reasonable freedom in classroom presentations and discussions and may introduce political, religious or otherwise controversial material, provided that said material is relevant to the course content and within the scope of the law. “

14.2   “In performing teaching functions, unit members shall have reasonable freedom to express their opinions in an objective manner.  Recognizing the persuasive power of a teacher, a unit member shall not utilize her/his position to persuade or influence pupils with her/his own personal, political and/or religious views.”

14.2.1    “The personal life of a unit member is not an appropriate concern of the Employer   for purposes of evaluation or disciplinary action unless it prevents the unit member from performing her/his duties.”

* The word “directed” inserted to conform to stipulation #4.

Article 9  GRIEVANCE PROCEDURE 

 In pertinent part

Article 9, sec 9.2.4.2

“The arbitrator’s decision shall be in writing and shall set forth the findings of fact, reasoning, and conclusions of the issues submitted. The arbitrator shall be without power or authority to make any decision that requires the commission of an act prohibited by law or which violates the terms of the Agreement. However, it is agreed that the arbitrator is empowered to include in any award such financial reimbursement or other remedies as she/he judges to be proper. The decision of the arbitrator shall be submitted  to the Association and the Employer and will be final and binding upon the parties.   If any question arises as to the arbitrarily of the grievance, the arbitrator shall rule upon such question only after she/he has had an opportunity to hear the merits of the grievance.”

STIPULATIONS

Both the Association and the District submitted and  agreed to the following stipulations:

1)      The button

2)      The CBA

3)      The grievance documents and related supporting documents

4)      The fact that the Superintendent directed the teachers remove and discontinue wearing the buttons

5)      The fact that no one was disciplined for wearing a button

6)      The fact that the District classified the button’s as political

7)      The fact that no disruption resulted from the button wearing

8)      The fact that CSEA members at South Bay Union School District wore Union buttons on campus throughout their work day. 

FACTUAL BACKGROUND

            The South Bay Union School District is located in Eureka,  California and operates two elementary schools.  Certificated employees are represented in collective bargaining by the South Bay Teachers Association, a unit of the California Teachers Association/National Education Association. The California School Employees Association represents Classified Employees.

            In January of 2005, the Governor of the State of California proposed a series of measures to the legislature, ostensibly referred to as reform measures, that if enacted would directly impact public education.  The legislature declined to enact the Governor’s proposals that culminated in special statewide elections held on November 8, 2005.

             The South Bay Teachers Association participated in a statewide political and organizing campaign to defeat the Governor’s proposals, which was coordinated by the California Teachers Association. As part of its participation, the South Bay Teachers Association received political and organization material produced by the California Teachers Association. A portion of the material was devoted to alerting the local leadership and teachers of the imperative need to gain community support. Part of that effort was to contact the South Bay Union School Districts Board of Trustees to seek their public opposition to the proposed reform measures.

            In a concerted statewide effort to organize the teachers’  opposition to the measures, the California Teachers Association produced a Union button. This Union button had statewide distribution, including  the South Bay Teachers Association.   The Union button was worn during the duty days on May 10,11, 12, 2005 by  those  South Bay certificated employees who chose to do so. At a meeting of the Board of Trustees on May 12, 2005, the Chairperson of the South Bay Teachers Association presented to the Board the Union button and the political material she received from the California Teachers Association.  From this presentation, the Board concluded that the Union button was in fact political and could not be worn during paid hours of service.  On May 13, 2005, the Superintendent of the South Bay Union School District issued a memorandum requesting that certificated employees refrain from wearing the Union button during paid hour of service.

POSITION OF SOUTH BAY  TEACHERS ASSOCIATION CTA/NEA ON BEHALF OF ITSELF AND THE GRIEVANT

            The Association argues the District misinterpreted and misapplied Article 14, Personal and Academic Freedom, when by Memorandum on May 24, 2005, directed certificated employees to cease wearing on their person, during paid hours of service, a Union button that declared:  “Students Our Special Interest” (Assn. Ex. 3). This determination by the District is based on its conclusion the Union button is political speech and is prohibited. This is a false assumption by the District because the purpose of the Union button is to organize and rally the members to a threat to their organizational security. There is no doubt this is a Union organizing button as it is emblazoned with the Association’s initials CTA/NEA. The message on the Union button is neutral and compels no action by the reader. It does not endorse or support a political cause, a candidate for public office, or any ballot proposition. No District resources, equipment or personnel were utilized to produce the Union button. Production of the button was at all times under the control of the Association, inclusive of its cost, content, and message.

            The collective bargaining agreement has no prohibition on the wearing of a Union button. Article 14 is designed to protect the right of certificated personnel to adorn Union buttons. Under the terms of Article 14 unit members are precluded from exerting undue influence over pupils to further their own personal, political and religious views.  There has been no showing made by the District that a unit member who wore a Union button   caused a disruption of the instructional program.   Nor has the District   demonstrated that any certificated employee discussed the Union button during instructional time or used the Union button to improperly influence their pupils.     

POSITION OF THE SOUTH BAY UNION SCHOOL DISTRICT

            The District argues that it reached the decision to require the Certificated Employees to stop wearing a Union button “Students Our Special Interest CTA/NEA” (Assn. Ex.3) during paid hours of service when it concluded it was part of a statewide political campaign, sponsored by the California Teachers Association.  This conclusion is based on the   Collective Bargaining Agreement Article 14 and applicable Federal and State statutes.  Article 14 prohibits the introduction of political material that is not related to the curriculum.  Political material introduced, including buttons, that are present during classroom instruction must be relevant to the subject matter being taught. This restriction serves the necessary purpose of preserving academic freedom while protecting the District’s obligation to maintain a neutral learning environment. 

            During the District’s Governing Board meeting of May 12, 2005, the Chairperson of the South Bay Teachers Association presented to the Board two (2) items related to proposed state ballot propositions. It was the opinion of the Association that  these ballot measures, if enacted, would have a substantial negative impact on the Association and public education.   Presented to the Board was one item titled “Campaign 2005-Students are Our Special Interest” (Dist Ex. A), and a second item a button that stated  “Students Our Special Interest CTA/NEA” (Assn. Ex 3). When a plain reading is applied   the first item is a clear request from the Association for the Board to take a public stand in opposition to the proposed ballot measures. It also invites the Board to actively  participate in a Union sponsored statewide campaign.  Presented to the Board in conjunction with a request for political action was the Union button. It was given to the Board as part of a statewide political campaign and the Union button is designed to persuade the electorate to defeat the ballot measures. 

            Because the button is an integral part of an acknowledged statewide political campaign, it cannot, nor should it be viewed as a protected Union communication. Association members or potential members are not the only intended beneficiaries of the buttons message. In fact the button’s and its message are designed to appeal to the general public.    The button is remarkable because of the similarity to the language and theme used in the literature provided to the Board in connection with a statewide campaign. The button’s message and language so closely mirror the campaign literatures they are not distinguishable.  The blurring of the Union button’s distinctiveness make it part of the larger political campaign.

            Federal and State law prohibit certain types of political communication in the classroom and  Article 14 provides the exceptions under which political material is permitted. The District is duty bound to prevent the improper dissemination of political material and must act definitively when it believes a violation has occurred.

DISCUSSION

            It is generally recognized the wearing of Union buttons while at work is a protected activity absent special circumstance. (Republic Aviation Corporation v. NLRB (1945) 324 U.S. 793 [ 16 LRRM 620] . The Public Employment Relations Board modified this principle in (East Whittier Education Association v. East Whittier School District PERB Decision 1727 December 21, 2004) The Board upheld the right to wear Union buttons in instructional settings, absent a showing of special circumstances.  Public education differs from the private sector in many respects; but the same general principles ennunciated in Republic Aviation governing Union buttons are found in East Whittier. Republic Aviation contains a special circumstance theory that can be used to limit the display of Union buttons.  Special circumstances can exist to preclude the wearing of a Union button during instructional time if it falls within the definitions or exclusions described in Article 14 of the agreement.  Article 14 requires a Union button to be non political but it does not preclude its wearing.  Under this concept if a Union button were political, it would lose its protection under Article 14.

            It is without controversy that a public school employer must be in compliance with California Education Code sec 7054 – 7058 that prohibits the expenditure of public resources and time for political purposes.   Article 14 of the agreement limits the discussion of political and other controversial topics during instructional time   to the subject being taught. It reminds certificated employees of the special position of authority they occupy in the classroom and the need to make certain their personal opinion does not unduly influence the pupils.

            Essentially, the parties to the agreement established a special circumstance standard by which to measure subjects of controversy. This test becomes particularly relevant in the instant case because the Union button was designated by the District to be political. This designation, if sustainable, would cause the Union button to be banned under the terms of Article 14 because of its political nature and distance from the instructional program.   Under these circumstances the District would have every right to disassociate itself from the Association’s political speech.

            The Public Employment Relations Board upheld  the right to wear a Union button in the instructional setting, and the scope of this arbitration  is limited to the District’s determination that the Union button is political or not.  By joint stipulation Article 14 is the applicable provision of the agreement to be considered.

            The Union button “Students Our Special Interest CTA/NEA “ (Assn. EX. 3) measures approximately 2x2 inches in size and has a white background. The letters and the words on the Union button are in different colors of black, green and orange. At the bottom of the button is the lettering “CTA/NEA”.  It is clearly visible and independent of the other lettering and can be easily read. The initials “CTA/NEA” have unique characters that also appear on campaign 2005 literature  (Dist. EX A).  In California Public Schools the letters “CTA/NEA” are well known and recognized initials that refer to California Teachers Association/National Education Association.  CTA/NEA initials have statewide   exposure in the California Public Schools, their meaning and identification are of common acceptance and understanding.

            The Union button’s message is neutral on it’s face and compels no action by the reader.  It does not support or endorse a candidate for public office nor does it support or oppose the Governor’s reform measures. It does share a commonality with the Campaign 2005 literature in that its language is similar. It is distinguishable  from the Campaign 2005 literature because of it language and symbols. The 2005 Campaign literature by title declares it’s political purpose and intent. Further,  the message on the 2005 Campaign literature is composed of a button embolden with the word “vote”,  the American Flag, balloons and a hat.  Campaign 2005 literal message is different from the Union button as it states, “Student are Our Special Interest”

            The Union button does have similar wording to the campaign literature but it substantially differs from the 2005 Campaign literature. The testimony and evidence offered indicates the Association made a conscious effort to differentiate between a political slogan and a Union button. Similarity of language between a Union button and a political slogan or button, in and of itself, does not automatically make the Union button eligible to be banned. It is the message on the button that is determinative of its status and whether or not it is prohibited under Article 14 of the Agreement. Should the District be allowed to ban a Union button because of it’s similarity to a political or other cause, it would result in the District controlling the Association’s organizing message.  The District has an interest in preserving an academic environment free from improper influences. There is no evidence the Union button caused a disruption of the instructional program, and neither manifested or contributed to discipline problems. Instruction in the classroom was not interrupted or diminished when the teachers wore the Union button. Teachers who wore the Union button did not introduce the button’s subject matter to their pupils and no compelling evidence was produced to the contrary.

            The Association  presented to the District’s Board its opposition to the Governor’s reform package and gave the Board the Union button together with the Campaign 2005 literature.  The District decided  to ban the Union button as these two items  gave the impression  to be linked together. Besides, the County Superintendent of Schools had requested the Board to adopt a resolution protecting  educational funding,  which was also in opposition to the Governor’s reforms. The evidence supports the Arbitrator’s conclusion that it was out of an abundance of caution, and no other reason, plus  all the above mentioned  conflicting issues, that the District arrived at the decision to ban the Union button.

FINDINGS AND CONCLUSIONS

1)                 The District did violate Article 14: Personal and Academic Freedom, when it classified the Union button “Students Our Special Interest CTA /NEA”  as political.

2)            The Union button “Students Our Special Interest CTA/NEA” is not a political button.

3)                 The Union Button “Students Our Special Interest CTA/NEA“ is an organization button and is protected activity.

REMEDY

   Teachers may wear without restriction the Union button “Students Our Special    Interest CTA/NEA” , subject to  the criteria  of Article 14 of the Agreement

1.          Stipulation number five (5) is made part of this award. No discipline shall be imposed prior to the superintendent’s directive of May 13, 2005.

2.         All other requested remedies are denied.

AWARD

Teachers may wear without restriction  the Union button  “Students Our Special Interest CTA/NEA”, subject to the above remedy.

    The Arbitrator  will retain jurisdiction of this matter for thirty (30) calendar days to resolve any issues that should arise concerning the implementation of this award. 

            _________________________
                    John F. Wormuth
                             Arbitrator                                                                   January 2, 2006   

 

 

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