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National Arbitration Center
Title: South Bay Teachers Association Section
and South Bay Union School District
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 ON BEHALF OF THE SOUTH BAY UNION SCHOOL DISTRICT: Stephen
L Hartsell, Esq. 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.
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