SEE CONCURRING AND DISSENTING OPINION

Filed 12/14/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE SUPERIOR COURT OF FRESNO 

COUNTY,

Petitioner,

v.

PUBLIC EMPLOYMENT RELATIONS 

BOARD,

Respondent;

SERVICE EMPLOYEES INTERNATIONAL 

UNION, LOCAL 521,

Real Party in Interest.

F075363

(PERB Dec. No. 2517-C, Case No. 

SA-CE-14-C)

OPINION

ORIGINAL PROCEEDING; petition for writ of review.

Wiley Price & Radulovich, Joseph E. Wiley and Suzanne I. Price for Petitioner.

J. Felix De La Torre, Wendi L. Ross and Brendan P. White for Respondent.

Weinberg, Roger & Rosenfeld, Kerianne R. Steele and Anthony J. Tucci for Real 

Party in Interest.

-ooOoo-
2.

In this original proceeding, the Superior Court of Fresno County (Court) 

challenges a decision by the Public Employment Relations Board (PERB) that certain 

Court personnel rules and regulations (Personnel Rules) violate the Trial Court 

Employment Protection and Governance Act (Trial Court Act) (Gov. Code, § 71600 et 

seq.)1 and, thus, constitute unfair practices. The initial administrative proceedings were 

brought by Service Employees International Union Local 521 (Union) after Court 

adopted new Personnel Rules affecting Union members. Respondent PERB is a quasijudicial agency of the State of California charged with administering the provisions of the 

Trial Court Act. (§ 71639.1.) Union, the real party in interest, is and at all relevant times 

has been the “recognized employee organization” representing employees of Court. 

(§ 71691, subd. (h).)

The Personnel Rules in question prohibit Court’s employees from (1) wearing 

clothing or adornments with writings or images, including pins, lanyards and other 

accessories; (2) soliciting during working hours for any purpose without prior Court 

approval; (3) distributing literature during nonworking time in working areas; and (4) 

displaying writings or images not published by Court in work areas visible to the public. 

Relevant to the issues raised in this writ, PERB found several aspects of the rules

improper with respect to Union members and thus constitute unfair practices. PERB 

concluded rules prohibiting employees from wearing certain clothing anywhere in the 

courthouse and from displaying images that are not published by Court in work areas 

visible to the public overly broad and interfered with rights protected by the Trial Court 

Act. It also determined the restriction on soliciting during work hours and the ban on 

distributing literature in working areas were ambiguous and overly broad. Relatedly, 

PERB considered and upheld its authority to remedy these violations and ordered Court 

to rescind the rules.

 

1 All unlabeled statutory references are to the Government Code.
3.

The case now reaches this court via writ proceedings. Within the many issues 

raised are important questions regarding Court’s authority to impose workplace rules to 

ensure Court appears impartial in all cases it hears and PERB’s authority to impose 

remedies for the perceived violations in Court’s workplace actions. As set out more fully 

below, we find Court has a substantial interest in regulating its workforce to ensure that 

the judicial process appears impartial to all appearing before it. Under the existing law 

and the facts presented regarding interactions with the public in the relevant courthouses, 

this interest is sufficient to justify the broad restrictions on employee clothing adopted in 

this case. Furthermore, we conclude, contrary to PERB’s findings, that the bans on 

soliciting during working hours and displaying images in areas visible to the public are 

not ambiguous and thus were properly adopted. However, we do agree with PERB that 

the regulations prohibiting the distribution of literature in working areas is ambiguous as 

to the meaning of “working areas.” In line with this conclusion, we agree with PERB 

that separation of powers concerns do not prohibit PERB from imposing a remedy with 

respect to that regulation.

We therefore affirm PERB’s decision invalidating the rule prohibiting the 

distribution of literature but otherwise set aside PERB’s remaining conclusions.

FACTUAL AND PROCEDURAL BACKGROUND

In general terms, this case is a dispute between Court and its employees. Court 

had approximately 550 employees at 11 facilities. Union is the exclusive representative 

of Court’s employees. Represented employees include approximately 63 office 

assistants, 200 judicial assistants, five account clerks, 42 court reporters and 14 marriage 

and family counselors. The employees work in various areas, including courtrooms, 

customer service windows, workstations behind customer service windows, offices near 

judges’ chambers, and separate offices. These work areas are visible to the public in 

varying degrees. Moreover, many employees regularly move throughout the courthouse 

as part of their duties, either going to and from courtrooms and judicial chambers, 
4.

transferring files, or traveling in public areas and on public elevators for official business. 

They may even travel between courthouse buildings. Other employees, such as clerks 

and court reporters, work within courtrooms and travel between different courtrooms. 

Finally, some relevant employees work as counselors, meeting with the public as part of 

their duties and traveling throughout the courthouse and their offices in view of the 

public.

Adoption of Personnel Rules

In 2009, representatives of Court met and conferred with representatives of Union 

on four occasions to discuss proposed amendments of Court’s Personnel Rules. No 

agreement was reached as to the provisions disputed in this proceeding. Regardless, 

Court chose to implement the new Personnel Rules, including the disputed provisions, on 

December 1, 2009, and included them in Court’s “Personnel Manual Amended 2009.” 

The disputed provisions are parts of Personnel Rules 1.11 (Dress and Appearance) and 

17.3 (Solicitation and Distribution Policy).

Personnel Rule 1.11 sets forth the general requirement that “Court employees must 

dress in a professional, business-like manner” and provides a list of items employees may 

not wear, such as jean pants, slippers, tennis shoes and casual sandals. In addition, 

Court’s employees may not wear “[c]lothing and/or adornments with writings or images, 

including but not limited to pins, lanyards, or any other accessories (except for Courtapproved clothing and/or adornments bearing the Court logo).”2

Personnel Rule 17.3 sets forth the rules that apply to employee activity on Court’s

property involving: (1) solicitations; (2) distribution of literature; and (3) displays of 

writings or images. Personnel Rule 17.3.1 contains a lead-in sentence followed by four 

 

2 The rule also provides: “Employees with questions regarding the appropriateness 

of business attire should request clarification from their supervisor or manager. 

Violations of these policies will result in, at minimum, the employee utilizing their own 

time to change the inappropriate item, and at maximum, lead to disciplinary action.”
5.

paragraphs containing restrictions. The first of these four paragraphs addresses 

solicitations by employees while on Court’s property by stating:

“[1] Employees of the Court may not solicit during working hours for any 

purpose unless pre-approved by the CEO [Court Executive Officer]. 

Working time is defined in the following section.” (Italics added.)

The “following section” is Personnel Rule 17.3.2, which defines “working time” 

as follows:

“Working time includes the working time of both the employee doing the 

soliciting and distributing and the employee to whom the soliciting is being 

directed. Working time does not include break periods, meal periods, or 

any other specified periods during the workday when employees are 

properly not engaged in performing their work tasks.”

The second and third paragraphs following the lead-in sentence of Personnel Rule 

17.3.1 address the distribution of literature by employees by stating:

“[2] Employees of the Court may not distribute literature during working 

time for any purpose. Working time is defined in the following section.

“[3] Employees of the Court may not distribute literature at any time for 

any purpose in working areas.”

The second paragraph’s prohibition of distributions is limited to “working time.” 

As a result, the practical reach of the third paragraph’s “any time” prohibition is limited 

to distributions that occur during nonworking time. Those nonworking time distributions 

are barred “in working areas.”

The fourth paragraph of Personnel Rule 17.3.1 addresses the display or writing 

and images by employees on Court’s property: “[4] Employees of the Court may not 

display writings or images that are not published by the Court in work areas that are 

visible to the public.”

In sum, these provisions prohibit employees from (1) wearing clothing or 

adornments with writings or images, including pins, lanyards and other accessories; (2) 

soliciting during working hours for any purpose without prior Court approval; (3) 
6.

distributing literature (a) during working time and (b) during nonworking time in working 

areas; and (4) displaying writings or images not published by Court in work areas visible 

to the public.

Evidence Regarding the Code of Ethics for Court’s Employees

In addition to the disputed regulations, Court presented evidence demonstrating 

that employees were already subject to a code of ethics for court employees. The Code 

of Ethics for the Court Employees of California (Code of Ethics) contains an introductory 

paragraph that states in part:

“A fair and independent court system is essential to the administration of 

justice in a democratic society. Exemplary conduct by court employees 

inspires public confidence and trust in courts, and conveys the values of 

impartiality, equity, and fairness that bring integrity to the court’s work. 

Further, court employees are expected to adhere to a high standard of 

ethical behavior.”

The Code of Ethics contains 12 tenets. The first tenet directs Court’s employees 

to “[p]rovide impartial and evenhanded treatment of all persons.” Other tenets address 

how Court’s employees should appear to members of the public. For instance, the sixth 

tenet directs Court’s employees to “[a]void any appearance of impropriety that might 

diminish the integrity and dignity of the court.” The seventh tenet directs Court’s

employees serving the public to provide accurate information about court processes 

without “appearing to favor one side of a case.”

The Code of Ethics and related guidelines were drafted by the Administrative 

Office of the Court and approved by the Judicial Council of California. They were 

provided to California trial courts, which were free to adopt them or not. Court adopted 

both the Code of Ethics and the guidelines. The guideline explaining the first tenet 

(impartiality) provides in part:

“While every court employee has the right to freedom of association and 

political expression, he or she does not have the right to take sides in a legal 

dispute ... or give the appearance of partiality on any issue that is likely to 
7.

come before the court. The procedural integrity of the court must be 

protected at all times.” (Italics added.)

The Judicial Council is a constitutionally created body. (Cal. Const., art. VI, § 6; 

see Reimel v. Alcoholic Beverage Control Appeals Bd. (1967) 254 Cal.App.2d 340, 345.) 

Article VI, section 6, subdivision (d) of the California Constitution directs the Judicial 

Council to “make recommendations to the courts” to improve the administration of 

justice. The Code of Ethics and related guidelines is an example of a recommendation 

made by the Judicial Council in accordance with this constitutional directive.

Unfair Labor Practice Charge and Underlying Proceedings

In March 2010, Union filed an unfair practice charge that alleged Personnel Rules 

1.11 and 17.3 violated the Trial Court Act. In May 2010, PERB’s Office of General 

Counsel issued a complaint based on that charge. The complaint alleged Court violated 

sections 71631 and 71635.1 by implementing Personnel Rules 1.11 and 17.3 and alleged 

implementing the rules was an unfair practice under section 71639.1, subdivision (c) and 

California Code of Regulations, title 8, section 32606, subdivision (a).3 The complaint 

referred to Personnel Rule 1.11’s prohibition against employees wearing clothing or 

adornments with writings or images, which included pins, lanyards and other accessories. 

It also stated Personnel Rule “17.3 prohibited employees ... from soliciting or 

distributing literature during working hours ‘for any purpose unless pre-approved by

[Court]’ ” and prohibited employees from displaying writings or images not published by

Court in work areas visible to the public. The complaint challenged prohibitions against 

four types of employee actions—namely, wearing, soliciting, distributing and displaying.

In June 2010, Court answered the complaint and alleged an affirmative defense 

based on the separation of powers doctrine. A two-day formal hearing was conducted 

 

3 “PERB Regulation(s)” refers to the regulations governing unfair practice 

proceedings before PERB, which are set forth in California Code of Regulations, title 8, 

sections 32600 through 32690.
8.

before an administrative law judge (ALJ) in March 2011. In May 2011, Court and Union 

filed their opening posthearing briefs. In June 2011, each side filed reply briefs.

In July 2011, in response to an argument raised in Court’s reply brief, Union 

moved to amend the complaint to conform to proof or, alternatively, for the consideration 

of an unalleged violation involving Personnel Rule 17.3.1’s prohibition of distributions of 

literature at any time for any purpose in working areas. The complaint originally referred 

to the prohibition against “soliciting or distributing literature during working hours ‘for 

any purpose unless pre-approved by the [Court Executive Officer].’ ” The amendment 

sought to delete the reference to distributing literature from this sentence and add a new 

sentence that referred to the prohibition against “distributing literature during working 

time for any purpose, and at any time for any purpose in working areas.” Court opposed 

the amendment.

In July 2014, the ALJ issued a proposed decision. The proposed decision 

addressed prohibitions against four types of employee actions: (1) wearing union regalia;

(2) soliciting; (3) distributing literature; and (4) displaying writings or images. The 

proposed decision stated the ban on solicitations was appropriate and the other three 

prohibitions violated the Trial Court Act because they were overbroad and interfered with 

employee and union rights.

Court and Union filed (1) exceptions to the proposed ALJ decision, and (2) 

responses to the exceptions submitted by the other side. In October 2014, PERB notified 

the parties that the filings were complete and the case had been placed on PERB’s docket.

In February 2017, PERB issued Decision No. 2517-C. PERB agreed with the 

proposed ALJ decision recommending that the prohibitions against wearing union 

regalia, displaying union writings or images, and distributing union literature during 

nonworking time in nonworking areas violated the Trial Court Act. Contrary to the 

proposed ALJ decision’s recommendation, PERB concluded the rule prohibiting 

soliciting during “working hours” violated the Trial Court Act because the term “working 
9.

hours” was ambiguous and could improperly limit the exercise of rights during an 

employee’s nonduty periods.

PERB ordered Court to remedy the violations by ceasing (1) to interfere with 

employees’ rights to communicate with each other in the workplace and (2) to deny 

Union the right to represent its members. In addition, PERB ordered Court to rescind the 

portions of Personnel Rules 1.11 and 17.3 that violated the Trial Court Act and post 

notices of the PERB order in locations customarily used for employee notices.

Petition for Review

In March 2017, Court filed a document with this court labeled “PETITION FOR 

WRIT OF REVIEW OF PUBLIC EMPLOYMENT RELATIONS BOARD DECISION.” 

Section 71639.4, subdivision (a) authorizes persons aggrieved by a final decision of 

PERB to obtain judicial review of that decision by filing a “petition for a writ of 

extraordinary relief” with the court of appeal. Court’s labeling of its writ petition has not 

created any disputes in this original proceeding and we have treated the petition as being 

subject to the procedures for a writ of extraordinary relief rather than the procedures 

specifically adapted to petitions for a writ of review.4

DISCUSSION

As noted, this case concerns the effect of portions of two Personnel Rules adopted 

by Court, Rules 1.11 and 17.3. For purposes of efficiency, we consider first whether 

PERB correctly concluded these rules improperly interfered with employee activities and, 

only where we conclude the rules are flawed, second, PERB’s authority to impose 

remedies for any violations. Ultimately, we conclude the Personnel Rules do not violate 

 

4 A petition for a “writ of review” is the procedural device for obtaining judicial 

review of final decisions of the Agricultural Labor Relations Board, Alcoholic Beverage 

Appeals Board, Public Utilities Commission, and Workers’ Compensation Appeals 

Board. (Lab. Code, § 1164.5, subd. (a); Bus. & Prof. Code, § 23090; Pub. Util. Code, 

§ 1756; Lab. Code, § 5950; see generally, Code Civ. Proc., §§ 1067–1077 [writ of 

review].)
10.

the Trial Court Act, save for one provision that is ambiguous. Before reaching the 

contested rules, we first identify our jurisdiction in these original proceedings and the 

relevant standards of review.

Jurisdiction, Legal Background, and Standard of Review

Our jurisdiction in these original proceedings arises from the Trial Court Act. The 

Trial Court Act is codified in chapter 7 of title 8 of the Government Code. Article 3 of 

the Trial Court Act addresses labor relations between California’s trial courts and court 

employees. (§§ 71630–71639.5.) One purposes of article 3 of the Trial Court Act is “to 

promote full communication between trial courts and their employees by providing a 

reasonable method for resolving disputes regarding wages, hours, and other terms and 

conditions of employment between trial courts and recognized employee organizations.” 

(§ 71630, subd. (a).) Others include “the improvement of personnel management and 

employer-employee relations within the trial courts in the state by providing a uniform 

basis for recognizing the right of trial court employees to join organizations of their own 

choice and to be represented by those organizations in their employment relations with 

trial courts” and requiring employees and trial courts “to meet and confer in good faith 

over matters within the scope of representation ....” (Ibid.)

Section 71631 states that, unless provided otherwise, trial court employees have 

the right to participate in the activities of employee organizations of their own choosing 

for the purpose of representation on all matters of employer-employee relations. 

Section 71635.1 states that trial courts shall not “interfere with” court employees because 

of their exercise of rights under section 71631. Similarly, PERB Regulation 32606 states 

it is an unfair practice for a trial court to interfere with trial court employees because of 

their exercise of rights guaranteed by section 71631. (Cal. Code Regs., tit. 8, § 32606

subd. (a).) The phrase “interfere with” is the basis for the violations of the Trial Court 

Act found in this case. In other words, PERB determined Court’s implementation of 
11.

Personnel Rules 1.11 and 17.3 interfered with the rights of Court’s employees to 

participate in Union activities.

A complaint alleging any violation of article 3 of the Trial Court Act shall be 

processed by PERB as an unfair practice charge. (§ 71639.1, subd. (c).) “The initial 

determination as to whether the charge of unfair practice is justified and, if so, the 

appropriate remedy necessary to effectuate the purposes of [article 3 of the Trial Court 

Act], shall be a matter within the exclusive jurisdiction of [PERB].” (§ 71639.1,

subd. (c).)

The Trial Court Act provides that “[a]ny charging party, respondent, or intervenor 

aggrieved by a final decision or order of [PERB] in an unfair practice case ... may 

petition for a writ of extraordinary relief from that decision or order.” (§ 71639.4,

subd. (a).) Such a petition must be filed in the court of appeal, not in a superior court, 

within 30 days from the issuance of the final decision. (§ 71639.4, subd. (b).) The court 

of appeal has jurisdiction “to make and enter a decree [1] enforcing, [2] modifying, and 

enforcing as modified, or [3] setting aside in whole or in part the decision.” (§ 71639.4,

subd. (b).)

Subdivision (b) of section 71639.4 states that PERB’s findings on “questions of 

fact, including ultimate facts, if supported by substantial evidence on the record 

considered as a whole, shall be conclusive.” In accordance with this provision, we apply 

the deferential substantial evidence standard of review to PERB’s resolution of disputed 

factual questions. (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912

(Boling).)

Our review with respect to questions of law is de novo. However, when the 

question of law involves the interpretation of labor law provisions within the jurisdiction 

of PERB, courts usually defer to PERB’s construction. (County of Los Angeles v. Los 

Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 922 (County of Los 

Angeles).) Accordingly, we accept PERB’s interpretation of the Trial Court Act “unless 
12.

it is clearly erroneous.” (Ibid.) Where the language of article 3 of the Trial Court Act is 

“the same or substantially the same” as that of the Meyers-Milias-Brown Act (§§ 3500–

3511), which governs the labor-management relations in other public employment 

settings, the Legislature has directed that the provisions of the Trial Court Act be 

“interpreted and applied in accordance with the judicial interpretations” of the language 

of that act. (§ 71639.3.) Also, the interpretation of the Trial Court Act should take into 

consideration well-settled principles from PERB decisions, well-settled principles from 

decisions issued by the National Labor Relations Board (NLRB), and decisions by 

federal courts enforcing NLRB decisions. (See County of Los Angeles, supra, 56 Cal.4th 

at pp. 917–922.)

Personnel Rule 1.11

Personnel Rule 1.11 imposes restrictions on the nature and types of clothing 

Court’s employees may wear. The provision was specifically challenged under the 

allegation that it improperly infringed upon employees’ rights to wear union regalia at the 

workplace. We will therefore generally refer to it as a restriction on union regalia. 

However, we note specifically that the provision does not single out union regalia and, 

instead, is a broad prohibition on a wide variety of clothing that includes other insignia 

and symbols.

In this instance, PERB, focusing on the union aspects of the issue, determined it 

“has long held that wearing union clothing, buttons or pins in the workplace is protected 

absent special circumstances.” (See East Whittier School District (2004) PERB Dec.

No. 1727, p. 9 [29 PERC ¶ 40, p. 9] (East Whittier School District) [simple rule is that 

wearing union buttons is a protected right, absent special circumstances].) It rejected

Court’s argument that special circumstances existed because of its responsibility to 

provide both the appearance and the fact of impartiality and neutrality. Addressing this 

argument, PERB determined “Court put on insufficient evidence to support a finding of 

special circumstances and it cannot categorically ban all display of union logos or 
13.

regalia.” As a result, PERB concluded the rules prohibiting employees from wearing 

union regalia anywhere in the courthouse were overly broad and interfered with rights 

protected by the Trial Court Act.

Relevant Legal Principles

Under state and federal law, employees have the right to wear union buttons and 

other regalia in the workplace. (East Whittier School District, supra, PERB Dec. No. 

1727, p. 9 [29 PERC ¶ 40, p. 9].) This general rule is subject to an exception where 

special circumstances justify a prohibition of union buttons and regalia. (Ibid.; Pay’N

Save Corp. v. N.L.R.B. (9th Cir. 1981) 641 F.2d 697, 700. (Pay’N Save).) The special 

circumstances exception covers a variety of concerns and includes where the employer 

has “a need ‘to project a certain type of image to the public.’ ” (Pay’N Save, supra, at

p. 700, quoting N.L.R.B. v. Harrah’s Club (9th Cir. 1964) 337 F.2d 177, 180.)5

Generally, the employer has the burden of establishing that its policy or rule is justified 

by special circumstances. (Pay’N Save, supra, at p. 702; Pathmark Stores, Inc. (2004) 

342 NLRB 378, 379, 380; see East Whittier School District, supra, PERB Dec. No. 1727, 

p. 11 [29 PERC ¶ 40, p. 11] [employer’s “burden is simply to demonstrate that a special 

circumstance exists”].) This analysis is done through a case-by-case approach that 

considers the particulars of the employer’s operations, including how employees interact 

 

5 The parties acknowledge that decisions by federal courts, the NRLB and PERB 

have recognized that an employer’s public image might constitute special circumstances 

that justify restrictions on wearing union regalia. For instance, some NLRB decisions 

have struck down a private employer’s prohibition on the wearing of union regalia on the 

ground the employer failed to demonstrate special circumstances. (E.g., Pacific Bell 

Telephone Company (2015) 362 NLRB No. 105, p. 5; Nordstrom, Inc. (1982) 264 NLRB 

698, 702 [department store violated National Labor Relations Act (NLRA) by forbidding 

salesperson from wearing a small, tasteful and inconspicuous union button].) Other 

NRLB decisions have concluded the private employer carried its burden and 

demonstrated special circumstances. (E.g., Starwood Hotels & Resorts Worldwide, Inc.

(2006) 348 NLRB 372, 373 [rule prohibiting hotel employees from wearing pins in 

public areas of hotel was justified by special circumstances].)
14.

with the public. (See, e.g., Beth Israel Hospital v. N.L.R.B. (1978) 437 U.S. 483, 506 

(Beth Israel Hospital) [the hospital context is quite different from retail marketing and 

restaurants].)

PERB has recognized that the existence of special circumstances depends on the 

setting and it has adopted a balancing test for determining whether special circumstances 

exist where the rights of employees are weighed against the legitimate interests identified 

by the employer. (East Whittier School District, supra, PERB Dec. No. 1727, p. 10 [29 

PERC ¶ 40, p. 10] [“what constitutes a ‘special circumstance’ necessarily involves a 

balancing of various interests”].) This approach is consistent with federal decisions. 

(See In-N-Out Burger, Incorporated v. N.L.R.B. (5th Cir. 2018) 894 F.3d 707, 715 (In-NOut Burger) [special circumstances exception reflects a balancing of employee’s rights 

under the NLRA and the employer’s management interests].)

Court’s Interest in an Impartial Judiciary as a Special Circumstance

The issues raised with respect to Personnel Rule 1.11 present the novel question of 

whether a trial court’s interest in the appearance of impartiality constitutes “special 

circumstances” that justify a rule prohibiting employees from wearing union buttons, pins 

and insignia. No published California judicial decision or federal court decision applying 

the NLRA (29 U.S.C. § 151 et seq.) has addressed the question. Similarly, we have 

found no final decision of PERB or the NLRB that has decided the issue.

The Law Recognizes the Importance of the Court Appearing Impartial

The importance of a judiciary that is independent and unbiased in fact, as well as 

in appearance, cannot be overstated. As recounted in various differing contexts, “justice 

must satisfy the appearance of justice.” (See Offutt v. United States (1954) 348 U.S. 11, 

14.) The need to maintain a neutral appearance on behalf of the judicial system is a 

paramount concern, as the “legitimacy of the Judicial Branch ultimately depends on its 

reputation for impartiality and nonpartisanship.” (Mistretta v. United States (1989) 488 
15.

U.S. 361, 407.) This concern extends throughout the judicial system: “Since we are 

committed to a government of laws and not of men, it is of the utmost importance that the 

administration of justice be absolutely fair.” (Cox v. Louisiana (1965) 379 U.S. 559, 562 

(Cox).)

This concern about preserving the appearance of impartiality extends as far as 

public actions near a courthouse. In Cox, the core issue was not the risk of actual bias in 

the judicial system, but the risk of apparent bias brought on by public actions around the 

courthouse. That case involved regulations restricting picketing and demonstrating near 

the courthouse. The regulations were upheld, in part because there could “be no question 

that a State has a legitimate interest in protecting its judicial system from the pressures 

which picketing near a courthouse might create.” (Cox, supra, 379 U.S. at p. 562.) 

Indeed, the United States Supreme Court confirmed “that the unhindered and 

untrammeled functioning of our courts is a part of the very foundation of our 

constitutional democracy” and that “[a] State may adopt safeguards necessary and 

appropriate to assure that the administration of justice at all stages is free from outside 

control and influence.” (Ibid.)

To further solidify the underpinnings of its reasoning, the opinion provides an 

example of how public-facing actions may affect the appearance of impartiality courts 

must uphold and, thus, why laws “may also properly protect the judicial process from 

being misjudged in the minds of the public.” (Cox, supra, 379 U.S. at p. 565.) As the 

court wrote: “Suppose demonstrators paraded and picketed for weeks with signs asking 

that indictments be dismissed, and that a judge, completely uninfluenced by these 

demonstrations, dismissed the indictments. A State may protect against the possibility of 

a conclusion by the public under these circumstances that the judge’s action was in part a 

product of intimidation and did not flow only from the fair and orderly working of the 

judicial process.” (Ibid.) In this way, actions taken on or around the courthouse are tied 
16.

not with the actual effect on judicial decisionmaking, but with the possibility the public 

may view those actions as affecting the process.

Court Has a Strong Interest that Employees Also Appear Impartial

Having confirmed that public actions around a courthouse can affect public 

perception, we note that public actions taken by court employees fall within an equivalent 

ambit. Indeed, such actions may be more concerning in the public’s mind given the 

reasonable belief that actions taken by government employees in their official capacity 

reflect, in some manner, official government policy. For such reasons, in cases involving 

situations where the courts are regulating the speech of their employees, the law 

recognizes that “even many of the most fundamental maxims of our First Amendment 

jurisprudence cannot reasonably be applied to speech by government employees.” 

(Waters v. Churchill (1994) 511 U.S. 661, 672 (Waters).) Thus, even “something as 

close to the core of the First Amendment as participation in political campaigns may be 

prohibited to government employees” and not only may those restrictions employ 

language more vague than permitted in restricting public speech but the government’s 

predictions of harm are given more deference than when raised in individual speech 

situations. (Id. at pp. 672–673.)

The extra deference afforded the government in such situations arises “from the 

nature of the government’s mission as employer.” (Waters, supra, 511 U.S. at p. 674.) 

In the context of Court’s duty to provide both actual and apparent impartiality, the 

difficulty of maintaining the public’s perception of impartiality may be better understood 

through the analogy of judge as umpire, merely calling balls and strikes. In such 

contexts, the actual impartiality of the judge turns on the judge’s potential conflicts. But 

in sports, as in the public sphere, a different concern is also well understood, often 

referred to as home-field advantage. In sports, it is unsurprising to hear fans of losing 

teams complaining the umpires were biased not based on any specific conflicts, but 
17.

because they were influenced by the home field. The complaint essentially alleges that 

pressure from the surrounding crowd—their cheering and public displays of support for 

the home team as well as their expectations at the time of important calls—pushes the 

umpire to be friendlier to the home team than the visitor. The public may not believe the 

umpire is biased-in-fact, but they question whether fair calls are made in critical 

moments. The concerns thus parallel the notion in Cox that outside influence may skew 

the public’s perception of a judicial ruling.

This case requires us to consider whether public displays of support for various 

causes, including union views, are sufficiently concerning to justify courts in limiting the 

ability of court system employees to display those views to the public while at work. On 

a general level, the answer appears a clear yes. Indeed, a simple modification of the 

analogy in Cox shows the potential influence such actions may have. Consider the 

situation where a dispositive motion has been filed against a group opposing unionization 

of some industry. Now suppose the file clerks of the court where that motion was filed 

wore pro-union regalia each day the opponent of that motion arrived to file paperwork, 

attend the hearing, or otherwise go about the business of defending against the motion, 

and that the judge, completely uninfluenced by that regalia, granted the motion, thereby 

dismissing the action. As in Cox, Court should be permitted to protect against the 

possibility of a conclusion by the opponent that the judge’s action was in part a product 

of their relationship with their staff and did not flow only from the fair and orderly 

working of the judicial process.

The argument for preventing such potential perceptions is much stronger in our 

situation—where the very employees the judge relies upon to ensure the court functions 

efficiently and whom the judge sees on a daily basis inside of the courthouse provide the 

apparent pressure—than in a situation such as that envisioned in Cox where the general 

public, who may not even have the power to remove the judge from office, demonstrate 

outside the courthouse. While the public may have concerns that broad support for a 
18.

cause may sway a judge, there can be no doubt that such concerns would magnify were 

the pressure not brought through broad protests outside the courthouse, but rather through 

attempts at influence on a daily basis inside the judge’s chambers.

Court employees dedicate themselves to the cause of justice and are invaluable to 

the court’s ability to function. Their dedication and hard work, however, place them in 

situations the public may reasonably understand as within the sphere of judicial 

influence. To protect the institution that is the judicial branch, employment rules 

designed to minimize or eliminate the potential for public concern about impartiality 

based on views held by those employees is a reasonable protective step. While this case 

is discussed mostly in the context of union views, the courts see a nearly infinite variety 

of cases, any one of which may involve situations where employee support of seemingly 

benign positions may raise concerns with one or another litigant. Thus, the restrictions 

may need to cover sports teams, advocacy groups, charities, and many other groups. That 

union positions may fall within the scope of these restrictions does not raise any concerns 

greater than those already recognized.

PERB’s Decision Is Contrary to Established Precedent and Clearly Erroneous

While we broadly conclude the workplace rules in this case are consistent with the 

state of the law, we recognize that our review is narrower than simply concluding the law 

supports Court’s action. Rather, we must consider whether PERB’s conclusion that the 

workplace regulations cannot stand is contrary to established PERB precedent or clearly 

erroneous. (County of Los Angeles, supra, 56 Cal.4th at p. 922; California State 

Employees’ Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 929, 

933.) As noted above, both sides recognize the exact issue raised in this case is one of 

first impression. Court, however, argues that prior holdings relevant to patient care show 

that PERB precedent recognizes and accepts the need to limit union and other similar 

speech in certain contexts. Specifically, pointing to The Regents of the University of 
19.

California, University of California at Los Angeles Medical Center (1983) PERB 

Decision No. 329-H [7 PERC ¶ 14214] (UCLA), Court contends that PERB has expressly 

adopted the view expressed in Beth Israel Hospital, that employee and employer rights 

must be balanced based on the context of the particular industry at issue. Court then 

argues that PERB’s decision, in this case, to consider effects that would cause a judge to 

potentially recuse him or herself was unduly narrow in light of that precedent.

We agree. Although dealing with nonemployee organizer access to hospital areas, 

the analysis undertaken by PERB in UCLA is instructive. There, after rejecting the claim 

that nonemployee organizers should be treated differently than employee organizers 

because the public was regularly permitted access to the areas in question, PERB 

undertook to determine whether UCLA had demonstrated that permitting organizers into 

various portions of the hospital would materially affect patient care. (UCLA, supra, 

PERB Dec. No. 329-H, pp. 8–10 [7 PERC ¶ 14214, pp. 8–10].) The analysis ultimately 

turned on whether an area was properly categorized as a patient care area. If the area in 

question was utilized for providing medical care or transporting patients between 

treatment areas, PERB recognized that regulating union activities in those areas would be 

presumptively valid owing to the need to ensure proper patient care. (Id. at pp. 10–11.) 

However, the same regulations would be presumptively invalid in areas that could be 

effectively sealed off from patients, their family, and friends and were not routinely used 

or entered by them—such as employee lounges, locker rooms, and classrooms. (Id. at 

p. 11.) PERB further noted, too, that the access in question did not extend to 

unauthorized access to union employees in corridors, at nursing stations, or during times 

when employees were on duty, all concerns raised by UCLA about how the permitted 

access may affect patient care. (Id. at p. 14.) The overall analysis, then, was one that 

considered the proven purpose of the space, the risk of harm to that purpose, and the 

evidence demonstrating contested areas fell, or did not fall, within those spaces where 

harm would exist from union activities.
20.

PERB contends it satisfied this level of analysis. It asserts Court’s complaints are 

little more than a claim that Court’s special purpose as an impartial decisionmaking body 

entitles it to a presumption that its regulations are permissible. PERB argues this is not 

the case, and that its analysis merely applied its general rules to Court as if it were any 

other employer. We agree with PERB that, to the extent it reviews Court’s conduct as an 

employer, it should treat Court as any other employer and, thus, that overbroad 

regulations are presumed invalid. However, this agreement does not aid PERB in this 

matter. Its error comes from an incorrect application of the facts to the principles 

generally applied in these situations and not from the conclusion that Court is not entitled 

to a presumption of validity.

The facts developed at the administrative proceedings demonstrate that the 

regulations at issue are generally designed to protect Court when employees interact with 

the public. Accordingly, in these proceedings Court has justified its restrictions based on 

claims, a priori legitimate as exemplified in the case law discussed above, that public 

perception may be affected by persistent and identifiable pressure on the decisionmaking 

process. It further presented evidence regarding the way employees interact with the 

public as part of their job duties and the nature of the largest courthouses covered by the 

contested policies, areas covering the vast majority of the affected workers.

It also presented evidence supporting the strength of its interest in protecting 

against the appearance of partiality, including evidence in the form of the Code of Ethics 

and guidelines adopted by the Judicial Council, a constitutionally created organization. 

The Code of Ethics was prepared for employees and excludes judges.6 It explicitly 

 

6 A Code of Judicial Ethics was adopted by the California Supreme Court in 1996. 

It was the result of Proposition 190, which amended the California Constitution to require 

the Supreme Court to make rules for the conduct of judges and to refer to such rules as 

the “Code of Judicial Ethics.” (Cal. Const., art. VI, § 18, subd. (m); see generally, Robie 

et al., California Judicial Council’s “Commission for Impartial Courts” (2010) 42 

McGeorge L.Rev. 135.)
21.

addresses the need for employees of California’s trial courts to present the appearance of 

impartiality.

The weight of this evidence in the analysis is substantial. A trial court’s 

appearance of impartiality is significant because Court performs a unique governmental 

function—namely, the administration of justice. Trial courts perform this function for all 

of California’s citizens and may not discriminate among them.7 Maintaining the 

appearance of impartiality is important to promoting the public’s confidence in the 

administration of justice, which includes the accurate and timely handling of papers 

submitted to the court and providing accurate information about court processes to 

members of the public. Thus, for instance, the seventh tenet of the Code of Ethics directs 

employees to “[s]erve the public by providing accurate information about court processes 

that is as helpful as possible without taking one side over the other, or appearing to favor 

one side of a case.” This tenant necessarily implies that it is possible for court employees 

to favor one side of a case when providing information to litigants and doing so would 

affect the way the court is perceived.

Consequently, based on a trial court’s unique role in administering justice, we 

conclude that appearing to perform this function impartially constitutes a substantial, 

legitimate interest. We further conclude that a trial court’s interest in appearing impartial 

constitutes special circumstances justifying restrictions on clothing and adornments worn 

by Court’s employees.

Under PERB’s precedent then, as employed in UCLA, the relevant dispute to 

resolve should have centered on whether the areas affected were, in fact, areas where 

 

7 The guideline to the tenth tenet of the Code of Ethics states that “[e]qual access to 

the court system and equal treatment for all are the cornerstones of the administration of 

justice.” The individuals who come before trial courts have a wide range of 

characteristics, which the tenth and eleventh tenets in the Code of Ethics list as including 

race, religion, color, national origin, ancestry, physical or mental disability, medical 

condition, marital status, sex, age, and sexual orientation.
22.

public displays of support for causes would affect the appearance of impartial justice. 

The underlying decision did not engage in this inquiry. Rather, PERB looked for 

examples of past incidents concerning the display of union views to determine whether

Court’s underlying interest in regulating public spaces was legitimate. While such an 

inquiry may provide valuable information, its use in this instance to overcome the 

legitimate concerns inherent in Court’s position, and recognized in the case law, was 

clearly erroneous. In UCLA, specific allegations of harm to patient care were made but 

were readily overlooked by PERB on the ground “such incidents [are] not probative as to 

whether the limited grant of access herein would cause disruption of patients or patient 

care” when they do not relate to the access in question. (UCLA, supra, PERB Dec. No. 

329-H, p. 14 [7 PERC ¶ 14214, p. 14].) The same is true of the allegation there were no 

prior issues recorded. Whether Court maintained records of discipline or complaints 

regarding union regalia does not disprove the possibility that members of the public 

attending the courthouse did not feel concern about the impartiality of Court based on 

employee actions. Indeed, the record reflects that the potential for such concerns is 

particularly high at a courthouse, as at least some testimony showed that even irrational 

concerns about a mediator’s gender were grounds for complaints.

By focusing on the lack of prior incidents, and the belief that employee conduct 

would not force a judge to recuse him or herself from a particular matter, as reasons to 

discount Court’s legitimate concerns about the public perception of Court, PERB granted

Court’s impartiality concerns less legitimacy than was granted to UCLA’s concerns about 

harm to patient care. Given that the case law demonstrates that the government as 

employer is entitled to rights similar to private employers, and much greater than granted 

the government when not acting as employer, rejecting Court’s legitimate concerns 

regarding impartiality on lesser evidence than that supporting the actions of healthcare 

employers was clearly erroneous. The risk of potential harm to the purpose of the 

utilized space was at least as strong as that provided in UCLA and, as such, the proper 
23.

areas of dispute concerned not whether Court could legitimately restrict employee 

speech—as it certainly can in this instance—but whether the specific regulations enacted 

were overly broad or the areas in which speech was restricted were appropriately 

identified. We thus conclude PERB erred in affirming the underlying determination that 

Court’s restrictions on employee clothing were not supported by the record or the case 

law.

Court’s Interest in Impartiality Justifies the Breadth of the Rule

Personnel Rule 1.11 broadly precludes employees from wearing any insignia or 

regalia in the workspace generally, along with limiting clothing options to business 

appropriate attire. While there is no reasonable challenge to raise regarding the broad 

restriction to business appropriate attire, it has been argued that a total ban on insignia or 

regalia is overbroad, particularly with respect to union views. We do not agree.

The record in this case is replete with evidence that most, if not all, employees of 

Court will encounter or have a high likelihood of eventually encountering members of the 

public in their daily activities. While there are likely some positions that do not 

necessarily encounter the public, the open space nature of courthouses and the vast 

majority of the evidence shows that public encounters are neither infrequent nor 

unexpected. When coupled with the undeniably important interest Court has in ensuring 

the public is not presented with situations where Court’s impartiality could be reasonably 

questioned due to employee viewpoints, we believe the use of a broad ban on insignia 

and regalia in the workplace generally is appropriate in this instance. Specifically, we 

conclude that the broad ban adopted by Court is proper in this case based on the evidence 

of public contact for virtually all affected employees and the evidence showing broad 

public access to certain courthouses. We recognize that under different facts narrower 

scopes to regalia restrictions may be required.
24.

We thus reject the argument that a narrower policy could be adopted whereby each 

judge determines what will be permitted in his or her courtroom. Initially, such a policy 

does not resolve the legitimate concerns Court has about employee interactions with the 

public outside of courtrooms. But, more fundamentally, such a policy would be 

unworkable. The largest courthouse in this case has seven floors and can have upward of 

two dozen judges working there. Employees, such as court reporters and clerks, regularly 

move between courtrooms and amongst the many floors. A judge-by-judge courtroom 

rule would require employees to predict not only their movements but the movements of 

those judges they are likely to encounter while entering courtrooms and traveling 

throughout the building. Although, in oral argument, Union’s counsel expected that 

Union’s members would be aware of individual practices and to try to enter courtrooms 

with those practices in mind, counsel acknowledged a hodgepodge of individual judicial 

expectations would be problematic because discipline of employees cannot occur unless 

those employees have a clear understanding of what is expected of them.

As a practical matter, then, any rule or set of rules adopted by individual judges 

with respect solely to their courtrooms will be applicable to only some employees and 

only some of the time. Yet legitimate concerns arise even in that narrow context with 

employees transferring between multiple courtrooms. Should, for example, a major 

environmental case be occurring in courtroom A, where environmentally sensitive 

messages are being banned by that court’s judge, such individual rules would not prevent 

an employee in courtroom B from wearing a “Drill Baby Drill” or “Save the Whales” 

message while walking to their assignment, even though their route would take them past 

and through those litigants when walking to and entering courtroom B. And it might not 

prevent clerks at filing stations or other judge’s secretaries and assistants from wearing 

similar messages. Moreover, given that court reporters and clerks can regularly change 

courtrooms throughout the day, it is reasonable to conclude that it is likely a situation 

may arise where the employee in courtroom B is called to assist in courtroom A, and thus 
25.

encounters and potentially influences the views of exactly those litigants the judge in 

courtroom A sought to protect.

Finally, Court’s concerns are not undercut by the fact this dispute arises in the 

context of a dispute about its employees’ right to wear small items, such as pins and 

lanyards, related to Union. While it is argued an innocuous pin or lanyard showing union 

status could not affect the public’s perception of Court, accepting such a view only 

sidesteps the underlying issues raised by the realities of the courthouse. A wide array of 

interested parties bring their disputes before Court. These include numerous business 

disputes between employers and employees having no direct relation to Union but raising 

issues upon which unions commonly take positions. Whether a message seen by these 

parties is conveyed through the smallest pin or lanyard or the brightest shirt, the fact of 

union influence in the courthouse may be seen as an indication of partiality by business 

litigants even in cases where Union is not involved. The pin or lanyard presents a 

message that a variety of litigants could reasonably view as contrary to their interests, 

regardless of the benign intent of the person wearing the pin or lanyard or Union’s actual 

views. It is for precisely these practical reasons that, under the unique situation presented 

in this case, a broadly framed workplace-wide restriction is both the most practical and 

the most appropriate way to protect Court’s legitimate interest in ensuring an appearance 

of impartiality throughout the courthouse.

It is on this analysis of the proper breadth where we garner a dissent. We feel a 

response is appropriate, as the dissent relies upon a misreading of our opinion to support 

a legally flawed analysis. To suggest our analysis relies upon a conclusion that members 

of the public believe the employees of the court system cannot act ethically or that judges 

are willing to abandon their ethical responsibilities at the slightest of pressures seriously 

calls into question the dissent’s entire position.

The issue before us is the public perception of the courts. Most of the public 

interact with the court only when necessary and, often, not because they choose to. We 
26.

do not think, nor do does our opinion maintain, that the public believes Court staff is 

biased. But we have no doubt that public perception can be swayed. Our analysis does 

not turn on whether the public has concluded one employee, or one judge, was actually 

biased. Indeed, if we had even come remotely close to suggesting that these rules were 

appropriate because court employees cannot act ethically, we would definitely have our 

own concerns about the conclusion.

The rules and regulations for actual bias situations are quite strict, clear, and not 

implicated here. Rather, the issue is institutional in nature. Can a court protect against 

the perception of bias in the public sphere? Can it manage its employees in a way that 

definitively excludes the possibility that some portion of the litigants going before it see 

messages from the court through its staff that directly or indirectly oppose the positions 

they are taking in their own pending litigation? Does Court’s legitimate interest in 

protecting the perception of the court justify a broad ban in this particular case at this 

particular court? The answer, as we explained above, is yes. Accordingly, we are not, as 

suggested, protecting partisan elements with strong anti-union views. Such views have 

absolutely nothing to do with this case. Rather, we are protecting the public’s right, in 

each individual case, to perceive Court as impartial.

The dissent has unfortunately chosen to recast our views in actual bias terms. In 

doing so and in then calling for concrete examples of public complaints of bias the 

dissent exposes a more fundamental difference in viewpoints. Where the dissent would 

require cracks in the foundation of the public’s trust in the court system before permitting 

repairs, we believe it is more important, and legally permissible, to proactively protect the 

public’s trust in the court system before they have a real reason to doubt the institutions 

they trust to govern their disputes.

Nor would we expect such fundamental concerns to ever be resolved through 

bargaining processes, as the dissent states. Bedrock principles such as maintaining the 
27.

integrity of the courts and keeping them free from the perception of bias are not 

bargaining issues equivalent to the length of, or location for, rest breaks.

The dissent argues that our concern with union regalia must be that it does 

something more than inform the public that the employee is a union member. It goes so 

far as arguing that a small metal union pin communicates little except that the wearer is a 

proud Union member. But wearing a union pin, shirt, or lanyard, does not simply signify 

membership in a union. Unions are representative of a known viewpoint, one favoring 

the interests of employees. They were created to counterbalance corporate interests. 

Wearing such union regalia may signify union membership to a union member, but it also 

invariably presents a broader message. It is not unlike seeing a member of the NRA or 

ACLU wearing a membership pin. The public association with such organizations 

readily invokes their core messages (protecting the Second Amendment or protecting 

civil liberties) and reminds the public that those institutions regularly fight for those 

rights.

General rights laid out in the Trial Court Act or Court’s own employment 

documents do not trump Court’s broad and legitimate concerns about appearing 

impartial. The public’s right to perceive an impartial judiciary affects views much 

broader than those of Union members. Accordingly, we do not agree with the dissent 

that our analysis must narrowly focus on Union issues. Rather, it is important to take a 

wider view and to consider how the law views more fundamental Constitutional rights in 

analogous contexts. Failing to consider and analogize to these broader rights works only 

to avoid the actual weight of Court’s interest in the balancing test. Moreover, to the 

extent Union may claim member’s free speech rights are a component of their 

employment conditions, such broader views may become the subject of future disputes

which could involve buttons, pins, or shirts evidencing support for other political issues 

of concern to Union. This is a slippery slope that cannot be so easily characterized as 

simply involving a membership pin.
28.

The dissent itself acknowledges that Court’s interest in avoiding a perception of 

bias is a fundamental and strong concern, worthy of weight in the ultimate balance. But 

by sidestepping the full scope of that interest, the dissent treats this foundational interest 

as no different than In-N-Out’s interest in not upsetting its unique public image. (See InN-Out Burger, supra, 894 F.3dat pp. 715–716.) While both certainly have unique public 

images, Court’s image is definitely not the same as In-N-Out’s. There can be no dispute 

that a distinct difference exists between a burger chain and the judicial branch.

To bolster its positioning, the dissent attempts various factual, legal, and logical 

arguments. Each is flawed. Factually, the dissent claims that the number of union, or 

even employment cases before Court are minimal in comparison to the overall docket. It 

notes specifically that only three union cases and only 140 employment cases were 

identified in the record. It contextualizes the relative importance such cases have within

the more than 237,000 total case filings it found online, noting specifically that the 

business cases account for less than one-half percent of Court’s civil filings. We must 

ask: Relative importance? The implication, which must be made explicit, is that some 

cases are so insignificant to the dissent that it believes we should tolerate a court system 

where some small percentage of cases are subject to a perception of bias. Simply stating 

the premise disproves it, as it is fundamental to an impartial judiciary that each case and 

each litigant is treated equally and fairly before the law.

Legally, the dissent attempts to contort the standard of review, treating PERB’s 

weighing of Court’s special circumstances and Union’s rights under the relevant statutes 

as a factual dispute in order to allow it to further defer to PERB’s analysis. The dissent 

takes this position too far. As the dissent’s own citation and our discussion of relevant 

legal principles explain, on matters of law within an agency’s scope of authority, we 

apply a hybrid approach, following PERB’s interpretations unless clearly erroneous. We 

retain “final authority to ‘ “state the true meaning of the statute” ’ ” and thus maintain our 

interpretative authority while acknowledging the agency’s administrative expertise. 
29.

(Boling, supra, 5 Cal.5th at pp. 911–912.) It is simply wrong to treat overbreadth issues 

as ultimate factual determinations. Rather, as we have done, we must consider whether 

PERB’s legal balancing is clearly erroneous. We conclude it was.

Logically, the dissent argues that Court’s employees should be held to the same 

standard as judges and that it would be a mistake to hold judges to a lower standard than 

employees. But this, too, does not survive close scrutiny. Judges and Court’s staff have 

different ethical duties and different job duties. In many if not all ways, judges, 

accountable to the public and either elected by them or appointed by their representatives, 

are held to higher standards than Court’s employees. While the dissent tries to minimize 

this particular case by making it about wearing small union buttons at the courthouse, its 

own use of judicial canons would not only exclude the same buttons it tries to protect 

(Could one even imagine a judge coming to work and wearing a pro- or anti-union button 

in the courthouse while presiding over a union case?) but would also go further to prevent 

the presentation of similar messages outside of the courthouse (as the display of political 

yard signs by judges is equally prohibited). (See, e.g., Rothman et al., Cal. Judicial

Conduct Handbook (4th ed. 2017) §§ 5:31, p 299 [“Comment on a case pending before 

the judge or on appeal could affect the outcome in the case and display bias. The judge’s 

need to comment is not as important as the need to maintain the appearance of fairness 

and impartiality during the pendency of proceedings.”]; 11:33 pp. 753–754 [“A family 

member should be strongly dissuaded from placing a lawn sign in front of the family 

home or a bumper sticker on the family car in support of a nonjudicial candidate. Such 

displays of support for a nonjudicial candidate, even if the judge is not a party to the 

decision, injure the perception of judicial impartiality.”]; see also Cal. Judges Assn., 

Formal Ethics Opn. No. 49.)

No rational analysis would suggest Court’s employees be held to judicial

standards. And, equally importantly, no rational analysis would suggest that the judicial 

cannon’s interpretation of impartiality, focused as it is on decisionmakers, covers the full 
30.

breadth of the meaning of that term. Yet, inexplicably, the dissent would, deferring to 

PERB’s analysis, import these inapplicable standards to govern courthouse employee 

conduct.

The dissent makes several other wrong turns in its analysis, at each interval 

seeming to conflate concerns about actual bias with what this dispute is really about, 

protecting Court’s recognized right to ensure it appears impartial in its dealings with the 

public. These errors are highlighted in the dissent’s footnoted remark that “the 

appearance of impartiality is not the be all, end all of the judicial system.” This 

conclusion shows the dissent’s fundamental error. In fact, the appearance of impartiality 

is a critical component of the judiciary. The dissent cannot fairly, on the one hand, agree 

that Court has a legitimate interest in appearing impartial to the public while, on the other 

hand, baselessly rejecting this right. It errs further by relying on inapplicable arguments 

concerning limits to this general interest or unsubstantiated claims that any actual offense 

that may be taken is the result of a partisan litigant’s emotional involvement in the case.

To avoid acknowledging that Court’s interest in impartiality outweighs the 

disputed rights in the Trial Court Act, the dissent utilizes several conflicting approaches. 

In some instances it defers to PERB’s views, for example that the ethical rules applicable 

to judges should control or that the balancing analysis is a factual matter. In others, it 

simply recasts the actual disputes to argue there is no evidence the disputed conduct will 

create actual bias. This results in difficult practical problems. Namely, the dissent would 

have disputes concerning how much influence union activity had on the public’s 

perception of the court be determined on a case by case basis—where obvious views 

would be prohibited but muted views would not, or small pins would be acceptable but 

large ones would not. As we noted above, this is simply unworkable and, worse, unfair 

to both employees and the courts they work for. To have a standard that requires one to

remember to keep their mouse pad properly covered when in view of the public or 

proactively determine whether their shirt is too bright, too bold, or utilizes too large of a 
31.

font to be worn at work only invites the extremes of boundary pushing or self-censorship, 

and ultimately numerous future disputes; all of which the dissent itself acknowledges can 

cause the public to lose faith in the court system if taken too far. No rightminded 

employer would seek such a solution and the law should not be twisted to force Court 

into such an untenable position. Far from the dissent’s puzzling claim, recognizing this 

fact is absolutely not an affront to Union employees.

Our analysis provides the most practical solution and rests on the soundest legal 

principles. It is unfair to force Court’s employees into proactively guessing whether their 

smaller or duller regalia will cross the case-by-case line suggested by the dissent. We 

look at such a solution and see no practical way for Union and Court to agree to a 

uniform rule. While we would like to see what our colleague believes is a proper balance 

between the right to express muted views and the right to exclude loud ones, we note the 

dissent does not provide any suggestions or solutions. Ultimately, we believe this is 

because the facts, the law, and logic all show there is no such practicable or workable

solution.

Personnel Rule 17.3

Personnel Rule 17.3 sets forth the rules that apply to employee activity on Court’s

property involving: (1) solicitation during working hours; (2) distribution of literature in 

working areas; and (3) the display of writings or images in work areas that are visible to 

the public. PERB determined the restriction on soliciting during work hours was 

overbroad. It determined the restriction on distributing literature in working areas was 

ambiguous. And it determined the restriction on displaying images in public areas was 

overbroad. We consider each conclusion separately.

The Solicitation During Working Hours Rule Is Not Ambiguous

This dispute concerns portions of Personnel Rules 17.3.1 and 17.3.2. As noted 

above, the first paragraph of Rule 17.3.1. provides employees may not solicit during 
32.

working hours for any purpose unless pre-approved by the [Court Executive Officer]. It 

then notes that working time is defined in the next section. Although related to a later 

argument, the second paragraph states “Employees of the Court may not distribute 

literature during working time for any purpose. Working time is defined in the following 

section.” Rule 17.3.2 then defines working time as including “the working time of both 

the employee doing the soliciting and distributing and the employee to whom the 

soliciting is being directed. Working time does not include break periods, or any other 

specified periods during the workday when employees are properly not engaged in 

performing their work tasks.”

The ALJ and PERB Decisions

Before the ALJ, Union argued the restriction on solicitation during “working 

hours” was overbroad because “working hours” was not defined by the Personnel Rules 

and could be read to mean the operating hours of Court. The ALJ’s proposed decision 

addressed the argument that “working hours” was ambiguous by stating “a reasonable 

interpretation of [Rule] 17.3.1 leads to the conclusion that ‘working hours’ is meant to be 

synonymous with ‘working time,’ since the sentence defining ‘working time’ 

immediately follows the sentence prohibiting solicitation during ‘working hours.’ ” The 

proposed decision concluded the term was not ambiguous and did not interfere with 

employee rights. As a result, the proposed decision concluded the restriction on 

employee solicitations during working hours was lawful.

PERB disagreed. PERB (1) quoted the basic principle that working time is for 

work, (2) stated employers may prohibit solicitations during working time, and (3) 

interpreted the term “working hours” to include duty-free periods, such as meal and rest 

breaks. PERB’s decision then stated: “An employer rule that prohibits solicitation or 

distribution during working hours, but makes no mention of duty-free times during 

‘working hours,’ such as meal or rest periods, when employees may solicit one another or 
33.

distribute literature, may reasonably be interpreted as authoring no such activities during 

those duty-free periods of the day. [Citation.] [¶] Such is the case here.” The decision 

stated Court “chose to introduce a separate and undefined term ‘working hours,’ which 

our precedents recognize as ambiguous and overly broad. (San Ramon [Valley Unified 

School District (1982)] PERB Dec. No. 230, pp. 11–12.)”8 Based on its textual analysis, 

PERB held Court’s rule addressing solicitations was overly broad and interfered with 

rights protected by the Trial Court Act.9

Applicable Law and Standard of Review

The parties do not dispute the basic principles that apply to employer rules that 

prohibit employees from soliciting while on the job. In 1945, the United States Supreme 

Court quoted with approval an NLRB decision setting forth these principles:

“ ‘The [federal statute], of course, does not prevent an employer from 

making and enforcing reasonable rules covering the conduct of employees 

on company time. Working time is for work. It is therefore within the 

province of an employer to promulgate and enforce a rule prohibiting union 

solicitation during working hours. Such a rule must be presumed to be 

valid in the absence of evidence that it was adopted for a discriminatory 

purpose. It is no less true that time outside working hours, whether before 

or after work, or during luncheon or rest periods, is an employee’s time to 

use as he wishes without unreasonable restraint, although the employee is 

 

8 The cited decision addressed the access of a union representative to a faculty 

lounge during the lunch period and set forth the following principle: “Essex 

International, Inc. (1979) 211 NLRB 749 [86 LRRM 1411] established that rules which 

prohibit solicitation during ‘working hours’ (which would include lunch and breaks) 

unduly restrict employees’ right to engage in protected activities since the employer has 

no cognizable interest in prohibiting nondisruptive contact in nonworking areas between 

employees and their organizations during duty-free periods of the day. [Fn. omitted.]” 

(San Ramon Valley Unified School District (1982) PERB Dec. No. 230, pp. 11–12 [6 

PERC ¶ 13184, pp. 11–12].)

9 PERB did not mention how the term “working hours” had been used in the NLRB 

decision quoted by the United States Supreme Court in Republic Aviation Corp. v. 

N.L.R.B. (1945) 324 U.S. 793, 803, fn. 10 (Republic Aviation)—specifically, that the term 

“working hours” had been used as a synonym of “working time.”
34.

on company property. It is therefore not within the province of an 

employer to promulgate and enforce a rule prohibiting union solicitation by 

an employee outside of working hours, although on company property. 

Such a rule must be presumed to be an unreasonable impediment to selforganization and therefore discriminatory in the absence of evidence that 

special circumstances make the rule necessary in order to maintain 

production or discipline.’ ” (Republic Aviation, supra, 324 U.S. at p 803, 

fn. 10, italics added.)

Language is “ambiguous” when it is susceptible to more than one reasonable 

interpretation. (Merced Irrigation Dist. v. Superior Court (2017) 7 Cal.App.5th 916, 925 

[statutory language] (Merced Irrigation); Adams v. MHC Colony Park, L.P. (2014) 224 

Cal.App.4th 601, 619 [contractual language] (Adams).) Similarly, “[t]he common or 

ordinary definition of ‘ambiguous’ is ‘capable of being understood in two or more 

possible senses or ways.’ ” (Arnaudo Brothers, L.P. v. Agricultural Labor Relations Bd.

(2018) 22 Cal.App.5th 1213, 1231.) A fundamental principle applied to the construction 

of statutes, regulations and rules is that the language is to be understood in context, with 

the whole of the enactment considered when attempting to construe each part. (Mendoza 

v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1087.) Restated in the negative, an 

enactment’s language is not construed in isolation. (Id. at p. 1084; Deal v. United States

(1993) 508 U.S. 129, 132 [it is a “fundamental principle of statutory construction (and, 

indeed, of language itself) that the meaning of a word cannot be determined in isolation,

but must be drawn from the context in which it is used”].)10 A second, related 

interpretive principle is that no part of an enactment should be rendered surplusage if a 

construction is available that avoids doing so. (Mendoza, at p. 1087; Moyer v. 

 

10 Similarly, language used in a judicial decision must be construed in the context of 

the entire opinion. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public 

Employment Relations Bd. (2011) 51 Cal.4th 259, 276 [union’s interpretation of a 

sentence from a California Supreme Court decision was plausible when viewed strictly as 

a matter of grammar, but was not supportable when the sentence was viewed in the 

context of the entire opinion].)
35.

Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [construction making some 

words surplusage is to be avoided].)

Questions involving the interpretation of statutory and regulatory provisions are 

regarded as legal questions. (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc.

(2010) 190 Cal.App.4th 1502, 1521.) Similarly, the interpretation of municipal 

resolutions and civil service rules are questions of law. (Nick v. City of Lake Forest

(2014) 232 Cal.App.4th 871, 880 [municipal resolution]; American Federation of State 

etc. Employees v. County of Los Angeles (1983) 146 Cal.App.3d 879, 884 [civil service 

rule].) Accordingly, we conclude the interpretation of Personnel Rules, like the 

interpretation of statutes, regulations, municipal resolutions and civil service rules, is a 

question of law. Whether the language of a personnel rule is ambiguous is a question of 

law subject to an independent determination by the courts. (See Merced Irrigation, 

supra, 7 Cal.App.5th at p. 925.) We note the same approach applies to contractual 

language—the existence of a contractual ambiguity poses a question of law subject to 

independent review. (Adams, supra, 224 Cal.App.4th at p. 619.) Therefore, we conclude 

PERB decided a question of law when it determined the provision prohibiting 

solicitations during working hours was ambiguous and review that decision de novo. 

(See Boling, supra, 5 Cal.5th at p. 911.)

Working Hours Is Not Ambiguous in Its Proper Context

PERB’s conclusion that the rule restricting solicitations was ambiguous was 

erroneous because it overlooked its clear contextual meaning in the rule. PERB 

construed the term “working hours” in isolation, not in context, and its approach made 

surplusage of the second sentence of the first paragraph of Personnel Rule 17.3.1. The 

first sentence in the paragraph prohibited solicitations during “working hours.” The 

second sentence stated, “Working time is defined in the following section.” As the term 

“working time” is not used in the first sentence, the only way the second sentence would 
36.

serve any purpose is if the term “working time” and the term “working hours” used in the 

first sentence meant the same thing. Thus, PERB’s determination that “working hours” 

could mean something other than “working time” deprived the second sentence of any 

meaning or purpose.

The principle that an enactment must be construed as a whole also requires the 

consideration of the use of the word “soliciting” in the definition of “working time.” 

That definition states “[w]orking time includes the working time of both the employee 

doing the soliciting and distributing and the employee to whom the soliciting is being 

directed.” (Italics added.) These two references to soliciting would serve no purpose if 

the definition of “working time” had no role in delineating the restriction on solicitations 

set forth in the first paragraph of Personnel Rule 17.3.1. The analysis adopted by PERB 

did not consider the use of the word “soliciting” in the definition of “working time” and 

how its use affected the reasonableness of interpreting “working hours” to mean 

something other than “working time.”

Finally, Personnel Rule 17.3.1’s use of the terms “working time” and “working 

hours” as synonyms is the same way those terms were used in an NLRB decision quoted 

by the United States Supreme Court. (Republic Aviation, supra, 324 U.S. at p. 803, 

fn. 10.) The use of the terms in Republic Aviation should be considered in evaluating the 

reasonableness of the interpretations advanced by the parties.

Our independent review of the provision restricting solicitation during “working 

hours” considers the provision in the overall context of Personnel Rule 17.3, avoids 

rendering other language surplusage and takes into consideration how the United States 

Supreme Court used the terms in Republic Aviation. This review leads us to conclude 

Personnel Rule 17.3.1’s use of the term “working hours” is not ambiguous. Placed in 

context, it is reasonably susceptible to only one interpretation—namely, the ban on 

solicitation during “working hours” means employees may not engage in solicitation 

during “working time” but may engage in nondisruptive solicitation during nonworking 
37.

time—that is, their duty-free periods. PERB’s determination that “working hours” was 

ambiguous constitutes legal error and that portion of the PERB decision must be set 

aside. (See § 71639.4, subd. (b).)

The Rule on Distribution of Literature in Working Areas Rule Is Ambiguous

We next consider Court’s restriction on the distribution of literature in working 

areas of Court. This dispute concerns the second and third paragraphs of Personnel Rule 

17.3.1. These paragraphs provide that employees “may not distribute literature during 

working time for any purpose” and “may not distribute literature at any time for any 

purpose in working areas.” The second paragraph’s prohibition on distribution is limited 

to “working time.” As a result, the practical reach of the third paragraph’s “any time” 

prohibition is limited to distributions that occur during nonworking time. Those 

nonworking time distributions are barred “in working areas.”

PERB determined the restriction on distributions “during working time for any 

purpose” was valid because it implements the basic principle that “ ‘[w]orking time is for 

work.’ ” (Republic Aviation, supra, 324 U.S. at p. 803, fn. 10.) In contrast, PERB 

determined the ban on distributions “at any time for any purpose in working areas” was 

ambiguous and overly broad, which had the potential to discourage employees from 

engaging in protected activity in mixed-use areas during their nonduty time.

In particular, PERB noted that the term “working areas” was not defined and the 

Court had many areas, such as a file room, courtrooms and jury rooms, that (1) were used 

for Court’s business some of the time and (2) at other times were not accessible to the 

public and were used by employees during their nonwork time. For instance, unused 

courtrooms and jury rooms are used by employees from various departments of Court 

during meal or rest breaks. PERB concluded the rule did not clearly state how the ban 

applied to these mixed-use areas because the combination of the phrases “at any time” 

and “in working areas” was reasonably susceptible to an interpretation banning 
38.

distributions in such mixed-use areas when used by employees during their duty-free 

periods. PERB found this ambiguity would reasonably tend to limit the exercise of 

protected rights and, therefore, the ban violated the Trial Court Act.

Based on this ruling, we are faced with both procedural and substantive issues. 

Procedurally, Court argues that PERB lacked authority to determine whether the 

“working areas” language was ambiguous because this basis was not alleged in the 

complaint and was therefore barred by the unalleged violations doctrine. It contends that 

considering the issue constituted a “per se violation of due process” was erroneous. 

Court then substantively attacks PERB’s ambiguity determination. It also argues, 

globally, that PERB lacks authority to force Court to change its rules under separation of 

powers concerns.

The Unalleged Violations Doctrine Does Not Bar PERB’s Authority

Court contends PERB should not have considered the challenge to the rule 

banning distribution of literature during nonworking hours “in working areas” because 

that ground was not alleged in the complaint. Instead, the challenge was limited to 

nonworking areas. Furthermore, Court argues PERB’s application of its “ ‘unalleged 

violations’ doctrine” denied Court due process.

In response, PERB contends it correctly applied its long-standing test to determine 

whether the unalleged violations doctrine allowed consideration of an issue not 

specifically alleged in the complaint. PERB argues it thoroughly reviewed the record and 

accurately determined the issue had been fully litigated such that Court would suffer no 

prejudice if the issue was addressed.

Relevant Facts

Typically, a union files a “charge” with PERB alleging an employer committed an 

unfair practice and, if the allegations are adequate, a complaint is issued by PERB’s 

Office of General Counsel. PERB Regulation 32615 requires the charge to be in writing 
39.

and to contain, among other things, a “clear and concise statement of the facts and 

conduct alleged to constitute an unfair practice.” (Cal. Code Regs., tit. 8, § 32615

subd. (a)(5).)

Here, the charge filed by Union included an appendix containing numbered 

paragraphs that described the unfair practices alleged. Paragraph 7 of the appendix 

alleged “Court employees represented by [Union], have been entitled to distribute written 

materials or flyers in public, and non-working areas of the Court, on non-work time, 

insofar as said flyers are concerned with wages, hours, and terms and conditions of 

employment of Court employees.” Paragraph 8 of the appendix alleged that during the 

period Union and its predecessor represented Court’s employees, Union “has had the 

right to distribute leaflets or flyers in non-work areas, breakrooms, and public areas, of 

the Court building insofar as said flyers related to the wages, hours, and terms and 

conditions of employment of Court employees and ha[s] exercised that right.” Paragraph 

11 of the appendix alleged that while meeting and conferring with Union about the 

proposed Personnel Rules, Court insisted it had the right “to limit or prohibit the 

distribution of [Union] material in the Courthouse in public areas, and non-work areas.” 

Paragraph 17 of the appendix alleged the rule prohibiting the distribution of union 

“flyers, leaflets or other material on Court property at any time, and in non-work areas, 

interferes with and restrains the right” granted under the Trial Court Act and constitutes 

an unfair practice. To summarize, the charge does not contain a “clear and concise 

statement” of Union’s concern about how the rule applies to mixed-use areas. (Cal. Code 

Regs., tit. 8, § 32615 subd. (a)(5).)

PERB Regulation 32640, subdivision (a) directs the issuance of a complaint if the 

charge is sufficient to establish a prima facie case. (Cal. Code Regs., tit. 8, § 32640

subd. (a).) As to the contents of the complaint, PERB Regulation 32640, subdivision (a) 

states:
40.

“The complaint ... shall state with particularity the conduct which is 

alleged to constitute an unfair practice. The complaint shall include, when 

known, when and where the conduct alleged to constitute an unfair practice 

occurred or is occurring, and the name(s) of the person(s) who allegedly 

committed the acts in question.” (Cal. Code Regs., tit. 8, § 32640

subd. (a).)

With respect to deficiencies in a complaint, the regulation states “[PERB] may 

disregard any error or defect in the complaint that does not substantially affect the rights 

of the parties.” (Cal. Code Regs., tit. 8, § 32640 subd. (a).) It appears this provision is 

part of the foundation for PERB’s unalleged violations doctrine.

Here, the allegations contained in the complaint were less detailed than those

stated in the charge. Paragraph 3 of the complaint addressed Court’s new restrictions on 

solicitation and distribution by stating Personnel Rule “17.3 prohibited employees 

represented by [Union] from soliciting or distributing literature during work hours ‘for 

any purpose unless pre-approved by the [Court Executive Officer].’ ” The next 

paragraph stated the implementation of the new rules interfered with employee rights 

guaranteed by the Trial Court Act and was an unfair practice. The text of the rule quoted 

in the complaint was from the provision addressing solicitation and was not contained in 

either of the two paragraphs addressing distributions of literature. Thus, the complaint 

does not “state with particularity” the ambiguity related to mixed-use areas or allege the 

ambiguity constitutes an unfair practice.

The Doctrine Satisfies Core Due Process Requirements

Under the unalleged violations doctrine, PERB has the discretion to consider 

allegations not included in the charge or the complaint if: (1) the respondent has had 

adequate notice and opportunity to defend against the unalleged matter; (2) the unalleged 

conduct is intimately related to the subject matter of the complaint and is part of the same 

course of conduct; (3) the matter has been fully litigated; (4) the parties have had the 

opportunity to examine and be cross-examined on the issue; and (5) the unalleged 

conduct occurred within the same limitations period as those matters alleged in the 
41.

complaint. (State of California (Department of Social Services) (2009) PERB Dec. No. 

2072-S, pp. 3–4 [33 PERC ¶ 177, pp. 3–4].)

In light of these five conditions above we reject the contention that the application 

of the doctrine is a per se violation of procedural due process. (See U.S. Const., 14th 

Amend., § 1 [due process clause]; Cal. Const., art. I, § 7, subd. (a) [state due process 

clause].) Procedural due process in an adjudicative setting requires notice and an 

opportunity to be heard before a person may be deprived of a protected interest. 

(Mathews v. Eldridge (1976) 424 U.S. 319, 333; see 9 Witkin, Cal. Procedure (5th 3d. 

2008) Administrative Proceedings, § 3, p. 1099 [basic due process requirements of notice 

and opportunity for hearing apply to adjudicative proceeding before administrative 

board].) The notice and opportunity to be heard requirements of procedural due process 

are built into the conditions that must be met for the unalleged violations doctrine to 

apply. Consequently, application of the unalleged violations doctrine does not constitute 

a per se violation of due process.

Court Cannot Demonstrate Prejudice in This Case

Focusing on the adequate notice and opportunity to defend intimately related and 

fully litigated elements of the test, Court also contends PERB incorrectly found the 

elements of the unalleged violations doctrine were met in this case. More specifically, 

Court asserts that if it had “known this claim was being asserted, the Court would have 

marshaled evidence to argue and prove that Union and Court employees know which 

areas are working areas, and which are not, including the times distribution is allowed in 

‘mixed use’ areas. Thus, the Court could have proven that the rule is not overbroad. The 

Court has been prejudiced by being denied this opportunity.” The prejudice element is 

important because the “ ‘charge need not be technically precise so long as it generally 

informs the party charged of the nature of the alleged violations’ ” and, thus, whether an 

unalleged violation is properly considered turns on whether the changes prejudiced Court. 
42.

(See Ruline Nursery Co. v. Agricultural Labor Relations Bd. (1985) 169 Cal.App.3d 247, 

268.)

Our evaluation of Court’s argument about prejudice due to the lack of opportunity 

to present evidence begins with an examination of the legal theory adopted by PERB 

when it determined the rule violated the Trial Court Act. If the evidence Court asserts it 

would have presented is irrelevant to that legal theory, then the lack of an opportunity to 

introduce that evidence is not prejudicial.

PERB explicitly stated it was not determining that the rule, as applied, violated the 

Trial Court Act. In other words, the issue was not Court’s enforcement of the rule 

restricting distributions. Instead, the violation was based on the legal theory that (1) the 

rule was ambiguous and (2) the ambiguity interfered with protected rights because it 

would reasonably tend to limit the exercise of protected rights. PERB stated this theory 

of interference “requires no showing that employees subjectively felt threatened or 

intimidated or were actually discouraged from participating in protected activity.” This 

theory takes into consideration the fact that interpretations and applications of ambiguous 

rules can change over time and guards against “the reasonable possibility of a broad 

interpretation in the future that would produce a chilling effect on protected activity.” 

(Italics added.)

We conclude, under the facts of this case, that Court cannot demonstrate the 

change was prejudicial. First, the unpresented evidence described by Court is not 

relevant to the legal question of whether the rule’s phrase “in working areas” was 

ambiguous. The evidence relevant to the inquiry into ambiguity was the text of the 

Personnel Rules and evidence relating to the existence of mixed-used areas—that is, 

areas used sometimes for Court’s business and other times by employees for meal and 

rest breaks. Court’s argument that it could have presented evidence proving its 

“employees know which areas are working areas, and which are not, including the times 

distribution is allowed in ‘mixed use’ areas” does not identify evidence relevant to 
43.

showing whether the text was reasonably susceptible to more than one interpretation. 

Instead, the evidence relates to how the rule was being applied.11

Second, the proposed evidence is not relevant to the other element of the legal 

theory of interference—that is, whether the ambiguity would reasonably tend to harm 

employees’ protected rights.12 This theory extends to the possibility future reasonable 

interpretations would tend to harm the exercise of protected rights. This reasonableness 

standard is based on an objectively reasonable person, not the subjective understanding of 

current employees. Court has not described any evidence it could have presented that 

would negate the reasonable possibility of a future interpretation of “working areas” 

being adopted that would tend to improperly limit the distribution of union literature, an 

activity protected by the Trial Court Act. Consequently, Court has not shown the 

proposed evidence would have been relevant to PERB’s determination that the ambiguity 

interfered with protected activity.

In sum, Court has not demonstrated PERB’s application on the unalleged 

violations doctrine resulted in prejudice.

 

11 In line with this analysis, we conclude Court’s reliance on State of California 

(Employment Development Department) (2001) PERB Dec. No. 1365a-S [25 PERC ¶ 

32057] is misplaced. California State Employees Association focused on whether 

language prohibiting certain union activities “inside the building” was overbroad and 

determined, based on evidence that areas within the building fluctuated between work 

and nonwork uses, the language used was overbroad. While Court argues this case 

demonstrates extrinsic evidence is needed to prove ambiguity, we disagree. Rather, we 

read this case, which focused on an as applied analysis, to support the conclusion that 

“work areas” can reasonably have different meanings depending on working conditions. 

As such, it supports finding the language is overbroad unless circumstances demonstrate 

there is complete separation between work and nonwork areas, a position Court does not 

argue.

12 As discussed more fully below, a prima facie case of interference with protected 

rights exists when employer conduct tends to or does result in some harm to employee 

rights. (See Carlsbad Unified School District (1979) PERB Dec. No. 89 [3 PERC ¶ 

10031] (Carlsbad).)
44.

The Term “Working Areas” Is Ambiguous

Having concluded PERB could properly consider the full scope of the language 

challenged, we next consider PERB’s determination that the rule prohibiting the 

distribution of literature “at any time for any purpose in working areas” was ambiguous 

because it was reasonably susceptible of being interpreted to ban distributions in mixeduse areas when such areas were being used by employees who were not on duty. One 

factor underlying PERB’s conclusion about ambiguity was the absence of a definition of 

“working areas” in the Personnel Rules.

Court contends the plain and reasonable interpretation of the language is that 

distribution is not allowed in working areas, but is allowed in nonworking areas. In

Court’s view, the reference to “working areas” necessarily implies that there are 

nonworking areas and the rule’s restriction does not apply in these nonworking areas.

We conclude PERB’s analysis is correct. PERB’s determination that an ambiguity 

exists does not violate any of the basic interpretive principles previously discussed. For 

instance, PERB clearly considered the meaning of the term “working areas” in context, 

not in isolation. PERB specifically mentioned language in the lead-in sentence of 

Personnel Rule 17.3.1 referring to the distribution of literature “ ‘on court property.’ ” 

PERB also noted the rule’s use of the phrases “ ‘at any time’ ” and “ ‘for any purpose,’ ” 

which supported the interpretation that no exceptions would be allowed.

In our review, when considering the language used, the context of the Personnel 

Rules as a whole, and the undisputed fact that mixed-use areas exist, we agree the phrase 

“working areas” is reasonably susceptible to more than one interpretation. It is possible 

to interpret the term “working areas” as areas being used for Court’s business and to 

exclude those same locations when they are used during employee breaks. However, it 

also is reasonable to interpret the rule as banning distributions in “working areas” at “any 

time,” without regard to whether the area is being used for Court’s business at the time of 

the distribution. (See Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, 628 [the word 
45.

“ ‘any’ ” means “ ‘without restriction’ ”].) As there are two equally reasonable 

interpretations of the phrase, we conclude Personnel Rule 17.3.1’s prohibition of 

distributions “at any time for any purpose in working areas” is ambiguous.

The Ambiguity Tends to Limit Protected Activities

Under PERB precedent, an ambiguous rule constitutes interference with a 

protected right if the ambiguity tends to or does result in some harm to employee rights. 

(See Carlsbad, supra, PERB Dec. No. 89 [3 PERC ¶ 10031].) PERB’s decision applied this 

standard when it concluded the rule constituted improper interference and Court does not 

argue that PERB chose the wrong legal standard. Instead, Court contends the rule is 

neither broad nor vague enough to tend to limit protected conduct. Alternatively, relying 

on the fact interference with a protected right that does not demolish that right is balanced 

against the interests of the employer under Carlsbad, Court contends any tendency to 

limit protected activity is justified by Court’s need to convey an image of impartiality and 

fairness.

In the context of a workers’ compensation statute that created a two-pronged test 

involving (1) an employee’s subjective belief and (2) whether that belief was objectively 

reasonable, the Third Appellate District stated, “the issue of subjective belief is a 

question of fact, which we review under the substantial evidence rule; and the issue of 

objective reasonableness is a question of law, which we determine independently.” 

(Young v. Workers’ Compensation Appeals Bd. (2014) 227 Cal.App.4th 472, 477.) Here, 

we conclude the question of whether an ambiguous employer rule would tend to limit 

employees in the exercise of their rights protected by the Trial Court Act (1) involves the 

application of a standard of objective reasonableness, (2) presents a question of law, and 

(3) falls within PERB’s area of expertise.

We conclude PERB’s determination that the ambiguity in the term “working 

areas” would have a tendency to limit an objectively reasonable employee’s exercise of 
46.

the right to distribute literature during that employee’s nonworking time is not clearly 

erroneous. Unlike the rule on dress and appearance that explicitly states employees with 

questions regarding the appropriateness of business attire can request clarification from 

their supervisor, the rule restricting distributions has no such provision. Consequently, 

the ambiguous rule puts Court’s employees at risk of discipline for violating the rule and 

this risk would tend to cause employees to err on the side of caution and forgo exercising 

the right to distribute literature in mixed-use areas during employee breaks. Moreover, 

the ambiguity in the concept of “working areas” means that employees distributing 

literature on their nonworking times in mixed-use areas would be unclear whether they 

are violating the rule and would therefore be likely to limit their activities to avoid 

potential punishment.

As to whether the ambiguity in the rule is justified by legitimate interests or 

concerns of the employer, we conclude it is not. Court argues its interest in appearing to 

be impartial justifies its rule. We do not discount Court’s interest in seeking impartiality 

in this context. However, we conclude the specific question presented by the 

circumstances of this case is whether the ambiguity is justified by Court’s interest in the 

appearance of impartiality. Unlike the issue regarding union regalia and clothing, the 

record does not demonstrate any risk of affecting the appearance of impartiality through 

the distribution of literature in nonworking areas. Moreover, Court has not presented any 

analysis showing how an ambiguous rule serves its interest in promoting an appearance 

of impartiality better than a rule that lacks the ambiguity. Consequently, we conclude the 

ambiguity is not justified by the need to appear impartial. In short, a rule that defined the 

term “working areas” and resolved the ambiguity would not cause Court to appear less 

impartial.13

 

13 We note, considering an analysis of the rule concerning the display of writings or 

images not published by Court discussed more fully below, that the change need not be 
47.

Therefore, we conclude PERB correctly determined the rule prohibiting 

distributions of literature “at any time for any purpose in working areas” (1) was 

ambiguous, (2) reasonably tended to limit the exercise by Court’s employees of a 

protected right, and (3) was not justified by legitimate employer interests.

Court’s Separation of Powers Arguments Are Not Persuasive

In light of our conclusion that PERB could consider the “working areas” dispute 

and that it correctly concluded that “working areas” was ambiguous, we must next 

consider Court’s arguments that PERB lacked the authority to impose the remedy it 

chose. Court raised the separation of powers doctrine as an affirmative defense to the 

complaint. Court concedes PERB has the initial jurisdiction to adjudicate unfair practice 

allegations but argues that there are limits on PERB’s authority to impose a remedy that 

undermines a trial court’s prerogative to control the conduct of persons connected with 

judicial proceedings and the delivery of other court services.

Applicable Law

Article III, section 3 of the California Constitution states: “The powers of state 

government are legislative, executive, and judicial. Persons charged with the exercise of 

one power may not exercise either of the others except as permitted by this Constitution.” 

This provision provides the basis for California’s separation of powers doctrine.

The doctrine of separation of powers includes two distinct concepts. “The first is 

one of separated functions—dividing the government into three departments and 

assigning each different responsibilities.... The second aspect focuses on ensuring that 

each branch maintains its authority and guards against encroachments by the other two 

branches—or, as we know it, checks and balances.” (Teter, Congressional Gridlock’s 

Threat to Separation of Powers (2013) 2013 Wis. L.Rev. 1097, 1114; Magill, The Real 

 

dramatic. Even an adjustment as simple as defining working areas as areas visible to the 

public would cure the ambiguity issue.
48.

Separation in Separation of Powers Law (2000) 86 Va. L.Rev. 1127, 1155–1167 [two 

distinct conceptions—separating power and balancing power.)

A realistic appraisal of California’s separation of powers doctrine leads to the 

conclusion that the doctrine does not sharply divide the operation of the three branches. 

(Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52 (Mendocino).) Instead, 

judicial decisions have long recognized that the three departments of government are in 

many respects mutually dependent and the actions of one branch may significantly affect 

those of another branch. (Ibid.) For instance, “[t]he power of the legislature to regulate 

criminal and civil proceedings and appeals is undisputed.” (Brydonjack v State Bar of 

California (1929) 208 Cal. 439, 442–443.) Thus, “the legislature may put reasonable 

restrictions upon constitutional functions of the courts provided they do not defeat or 

materially impair the exercise of those functions.” (Id. at p. 444.)

The Trial Court Act is an example of restrictions placed on the courts by the 

Legislature. For example, section 71636, subdivision (a) provides that a “trial court may 

adopt reasonable rules and regulations for the administration of employer-employee 

relations” but requires the court to first consult in good faith with representatives of any 

recognized employee organization or organizations. The trial court’s rules and 

regulations may address (1) the access of union representatives to work locations and (2) 

the means of communication by unions with employees, such as the use of official 

bulletin boards. (§ 71636, subd. (a)(6)–(7).)

Section 71636, subdivision (e) states that “[t]rial court employees and employee 

organizations shall be able to challenge a rule or regulation of a trial court as a violation 

of this chapter.” Under section 71639.1, subdivision (c), a complaint alleging a violation 

of the Trial Court Act shall be processed as an unfair practice charge by PERB. “[T]he 

appropriate remedy necessary to effectuate the purpose of [the Trial Court Act], shall be a 

matter within the exclusive jurisdiction of [PERB],” except PERB has no authority to 
49.

award certain types of damages to compensate for an unlawful strike. (§ 71639.1,

subd. (c).)

The Trial Court Act Is Constitutional as Applied

Court explicitly states it “is not challenging the facial validity of the Trial Court 

Act.” (See Briggs v. Brown (2017) 3 Cal.5th 808, 846 [legislation that truly defeats or 

materially impairs the court’s core functions may be invalidated].) Yet, Court has argued 

“it has the exclusive right to determine its rules consistent with its mission.” We reject 

this argument about Court’s exclusive right. While we do not consider the issue in depth, 

the provisions of the Trial Court Act described earlier confirm that trial courts do not 

have the exclusive right to determine the content of the rules and regulations governing 

its labor relations. In short, Court’s power over employee and union relations is subject 

to limitations similar to those imposed on other government employers, some of which 

are set forth in the Trial Court Act.

Regardless, Court states “it is challenging the [Trial Court] Act as applied to it by 

PERB’s Order in this particular case.” Court contends “that PERB’s Order has harmed 

the Court by depriving it of its constitutional rights.” The applicable test is whether 

PERB’s application of the Trial Court Act to a particular rule defeated or materially 

impaired Court’s exercise of its constitutional power or the fulfillment of its 

constitutional function. (Mendocino, supra, 13 Cal.4th at pp. 58–59.) Accordingly, the 

question presented is whether PERB’s determination that the rule prohibiting 

distributions of literature “in working areas” violated the Trial Court Act defeats or 

materially impairs Court’s exercise of its constitutional power or the fulfillment of its 

constitutional function.

To identify whether a function of Court might be defeated or impaired, we 

consider how invalidating the rule will impact Court. The practical effect of invalidating 

the ambiguous rule is that Court will have a gap in its rules addressing soliciting and 
50.

distributing literature. This gap is relatively narrow, and its duration is within Court’s 

control because it can cure the ambiguity by amending the rule. Also, only distributions 

of literature that occur outside of “working time” will be unregulated because 

distributions during working time are prohibited by another provision. Applying the 

definition of working time in Personnel Rule 17.3.2, the gap will allow a nonworking 

employee to distribute literature to another nonworking employee even though they are 

located in a working area.

We conclude the invalidation of the rule will not defeat or materially impair a

constitutional function of Court. An impairment, if it exists at all, will last only as long 

as it takes Court to implement an amendment to the singular rule found improper. Thus, 

Court’s ability to limit the duration of any impairment supports the conclusion that any 

impairment will not be material. Furthermore, the gap will not frustrate or deprive Court 

of its ability to perform its functions because the gap affects employees’ actions only 

during their nonworking time—that is, when they are not performing duties that allow

Court to function. There is nothing in the record to suggest the delivery of literature from 

one nonworking employee to another nonworking employee will create inefficiencies and 

reduce Court’s ability to serve the public or perform any function, constitutional or 

otherwise. (See Millholen v. Riley (1930) 211 Cal. 29, 34 [Legislature may regulate the 

operation of the courts “so long as their efficiency is not thereby impaired”].) Such 

deliveries of literature were not regulated prior to December 1, 2009, and Court was able 

to operate. No evidence suggests that distribution of literature between nonworking 

employees was disruptive or created other problems for Court prior to the adoption of 

Personnel Rule 17.3.1. Therefore, we conclude the invalidation of the ambiguous rule 

does not violate the separation of powers doctrine.
51.

The Restriction on Displaying Writings and Images Is Appropriate

We next consider the final issue raised in this matter, the restriction on displaying 

writings and images that are not published by Court in work areas that are visible to the 

public. The fourth paragraph of Personnel Rule 17.3.1 addresses the display of writing 

and images by employees in work areas that are visible to the public. We note that the 

rule banning the display of certain writings and images is more narrowly drawn than the 

rule governing clothing and adornments. First, the rule for displays does not apply to 

items published by Court. Second, it is limited to work areas visible to the public.14

The proposed ALJ decision stated this rule “is problematic because it creates a 

categorical restriction on all union writings and images without any room for the 

objective case-by-case balancing of interests required by PERB case law. For example, it 

is unclear how the display of a union coffee mug or quarter-sized pin in a court reporter’s 

private office, while nominally visible to the public, would detrimentally affect the 

Court’s image of impartiality and neutrality.” As with the ban on wearing union regalia, 

PERB concluded the prohibition on the display of union writings and images in all work 

areas visible to the public was overly broad and interfered with rights protected by the 

Trial Court Act.

Our Analysis of Union Regalia Issue Controls

Initially, we conclude the same balancing test applied to items worn by employees 

applies to the display of writings and images. (See ante.) We reach the same conclusion 

as in our analysis of the restriction on clothing and accessories. Court has a legitimate 

governmental interest in maintaining the appearance of impartiality by ensuring Court’s 

 

14 Although this limitation refers to “work areas,” a term highly similar to the 

“working areas” term we found ambiguous above, we do not uphold PERB on that 

ground here. First, this term was not separately argued as ambiguous in the briefing to 

this court. Second, even if it had been, the additional definitional phrase “that are visible 

to the public” sufficiently narrows the spaces to avoid the ambiguity issues that “working 

areas” generated.
52.

employees appear impartial. This legitimate governmental interest is sufficient to 

establish special circumstances that justify a broad restriction on the display of writings 

and images in areas visible to the public. Accordingly, the ban does not violate the Trial 

Court Act, and PERB’s decision to the contrary must be set aside.

With respect to this issue, we note the record evidence shows Court allowed Union 

to have bulletin boards for notices, flyers and other materials in locations where the 

public may see them. The locations included hallways behind the courtrooms that 

connect to judges’ chambers and other offices, such as those used by judicial assistants 

and court reporters. These hallways are not immediately accessible to the public, but are 

used by members of the public, such as attorneys, jurors and witnesses. Both PERB and

Union agree there is no evidence such displays have resulted in complaints about Court 

bias.

As with evidence that no prior complaints were raised regarding union regalia, 

however, we conclude this evidence is insufficient to undercut Court’s legitimate interest 

in ensuring it is perceived as impartial. The lack of prior complaints does not 

demonstrate no bias has been perceived, particularly given those most likely to see the 

signs are not litigants themselves at the time they would be in the hallways. Nor does the 

lack of formalized complaints undercut the well settled law demonstrating Court’s 

interest in impartiality is sufficient to prospectively restrict several forms of speech on or 

around the courthouse. Finally, nothing about the fact union views have been expressed 

on bulletin boards limits the fact that display of other messages on such bulletin boards 

could create a perception of impartiality and thus could reasonably be restricted. We see 

nothing about the historical display of union materials on bulletin boards in the 

courthouse that would justify exempting them from an otherwise reasonable rule on the 

display of non-court published messages in areas visible to the public.
53.

DISPOSITION

The writ of extraordinary relief is granted and the parts of the PERB decision 

invalidating the portion of Personnel Rule 1.11 addressing images and writings on 

clothing or adornments and the first (solicitation) and fourth (display) paragraphs of 

Personnel Rule 17.3.1 are set aside. The part of the PERB decision invalidating the third 

paragraph (distributions in working areas) of Personnel Rule 17.3.1 is not set aside.

The parties shall bear their own costs of this proceeding.

_____________________

Hill, P.J.

I CONCUR:

_____________________

LEVY, J.
Franson J., concurring and dissenting. 

I concur in the majority’s conclusions about the validity of the rule limiting 

solicitations and the invalidity of the rule prohibiting the distribution of literature in 

“working areas.” 

On the question of special circumstances, I agree that trial courts have a legitimate 

interest in their staff appearing impartial and this interest constitutes special 

circumstances justifying some reasonable restrictions on union regalia, writings and 

images. For instance, no one seriously contends the Trial Court Act prevents California’s 

trial courts from having a dress code and requires trial courts to allow employees to 

display union picket signs inside court facilities or wear pins and buttons that contain 

profanity, incite violence, disparage specific individuals, or disrupt or disturb the 

character, integrity or operations of a courthouse.

While some reasonable restrictions are appropriate, total bans on union materials 

in a workplace are rarely upheld because applicable law requires the restrictions be 

narrowly tailored to the special circumstances. Here, the majority upholds personnel 

rules banning all courthouse employees from wearing or displaying any item of union 

regalia. They conclude that wearing or displaying such items so evidences a pro-union 

bias or prejudice by the employees and the court that it undermines a fair and 

independent judicial system. With no evidence in the record to support this conclusion, 

the majority relies on a fundamental misconception—namely, that objective members of 

the courthouse public believe trial court employees who wear or display union items 

cannot be ethical, fair and impartial in carrying out their duties. This is where I part 

company with my colleagues and conclude the public can see a trial court employee 

wearing or displaying appropriate union regalia without reasonably doubting the 

impartiality of the employee or the court itself. 
2

When the special circumstances are a trial court’s interest in appearing impartial, 

that appearance must be evaluated from the perspective of a fully informed, objectively 

reasonable member of the public. A partisan litigant emotionally involved in a lawsuit 

with a union, or someone with an anti-union bias, is not the disinterested objective 

observer whose doubts concerning the trial court’s impartiality provide the governing 

standard. Thus, the possibility that some Californians hold strong anti-union views is not 

a legitimate justification that outweighs the statutorily protected right of trial court 

employees to wear union pins and buttons.

In my view, a fully informed, objectively reasonable member of the public would 

be aware that the employees of Fresno County Superior Court (Court) are unionized. 

That person would also be aware that the Legislature authorized trial court employees to 

unionize, which shows the Legislature has determined that unionized trial court 

employees can perform their jobs without inappropriate favoritism toward litigants who 

are unions or, more generally, employees. In these circumstances, a member of the 

public who might notice a court employee wearing an innocuous union pin or button 

would not reasonably entertain doubts about the employee’s impartiality, or doubts about 

the pin or button influencing a judge. The same conclusion applies a mouse pad or coffee 

mug bearing a union logo. Therefore, I conclude Public Employment Relations Board 

(PERB) correctly determined the bans were overly broad and the Court failed to carry its 

burden of establishing special circumstances justifying such a far-reaching, total ban. 

What little evidence the Court presented failed to establish that reasonable restrictions, 

narrowly tailored to an objectively reasonable appearance of impartiality, could not be 

crafted to meet the special circumstances. Consequently, I respectfully dissent from the 

majority’s decision that PERB erred when it found the Court’s rules were overly broad 

and unnecessarily interfered with rights protected by the Trial Court Act. 
3

I. THE APPEARANCE OF IMPARTIALITY AS A SPECIAL CIRCUMSTANCE

A. The Interest in Appearing Impartial

Service Employees International Union Local 521 (Union), PERB and the 

administrative law judge (ALJ) all have recognized that a trial court’s interest in the 

appearance of impartiality is a special circumstance that might justify some restrictions 

on wearing union regalia or displaying union writings and images. Based on the 

positions taken by the parties and the evidence presented, I agree with the majority that 

California’s trial courts have a strong, legitimate interest in the appearance of impartiality

that extends to employees who are not judges or commissioners. I also agree this 

legitimate governmental interest constitutes special circumstances justifying some

restrictions on union regalia, writings and images in trial court facilities. 

B. Defining Impartiality

Having reached the foregoing conclusions, my analysis takes a path different from 

that of the majority. The next steps should (1) define the term “impartiality” and (2) 

identify the appropriate standard for evaluating the appearance of impartiality.

First, the definition of impartiality established for judges by the disqualification 

statutes and the California Code of Judicial Ethics should be applied in the present 

context. (See Code Civ. Proc., §§ 170.1, 170.2; Cal. Code Jud. Ethics, canons 2A, 3E.) 

These rules are designed to assure the public that impartial judges are handling cases and, 

therefore, necessarily address the appearance of impartiality. (See Cal. Code Jud. Ethics, 

canon 2A [promoting public confidence].) It makes little sense to hold court employees 

to a higher standard than the standard applied to judges, because the public perception 

created by employees adhering to the higher standard would be undermined if judges 

operated under a lower standard. Accordingly, it is rational and internally consistent to 

adopt a single definition. Therefore, the definition of “impartiality” adopted by the 

California Supreme Court in Haworth v. Superior Court (2010) 50 Cal.4th 372 

(Haworth) and followed by the Fourth District in Wechsler v. Superior Court (2014) 224 
4

Cal.App.4th 384 (Wechsler) is appropriate. “ ‘Impartiality’ entails the ‘absence of bias or 

prejudice in favor of, or against, particular parties or classes of parties, as well as 

maintenance of an open mind.’ ”1 (Haworth, supra, at p. 389; see Wechsler, supra, at pp. 

390–391.)

Second, the appropriate standard for evaluating the appearance of impartiality is 

an objective one. (Haworth, supra, 50 Cal.4th at p. 389; Wechsler, supra, 224 

Cal.App.4th at p. 391.) Specifically, the trial court’s interest in the appearance of 

impartiality is unduly compromised “if a fully informed, reasonable member of the public 

would fairly entertain doubts that the [employee] is impartial.” (Wechsler, supra, at p. 

391.) This wording conforms with the statutory language stating a judge shall be 

disqualified if for any reason “[a] person aware of the facts might reasonably entertain a 

doubt that the judge would be able to be impartial.” (Code Civ. Proc., § 170.1, subd. 

(a)(6)(A)(iiii).) 

An objectively reasonable member of the public “ ‘is not someone who is 

“hypersensitive or unduly suspicious,” but rather is a “well-informed, thoughtful 

observer.” ’ [Citation.] ‘[T]he partisan litigant emotionally involved in the controversy 

underlying the lawsuit is not the disinterested objective observer whose doubts 

concerning the [employee’s] impartiality provide the governing standard.’ ” (Haworth, 

supra, 50 Cal.4th at p. 389.) Also, the reasonable member of the public is a layperson—

that is, someone outside the judicial system. (Wechsler, supra, 224 Cal.App.4th at p. 

391.) 

 

1 Similarly, the terminology section of the California Code of Judicial Ethics states: 

“ ‘Impartial,’ ‘impartiality,’ and ‘impartially’ mean the absence of bias or prejudice in 

favor of, or against, particular parties or classes of parties, as well as the maintenance of 

an open mind in considering issues that may come before a judge.” 
5

C. Examples of Applications of the Impartiality Standard to Judges

The context for evaluating a trial court’s interest in the appearance of impartiality 

of nonjudicial employees is provided (in part) by how the standard for disqualifying 

judges is applied to specific situations. (See Code Civ. Proc., §§ 170.1, 170.2.) For 

example, a judge whose private practice was devoted exclusively to labor relations and 

representing either unions or employers may not handle labor relations cases immediately 

after appointment to the bench if the judge previously serve as a lawyer (1) in that 

proceeding or (2) in any other proceeding that involved the same issues and a party in the 

present proceeding. (Code Civ. Proc., § 170.1, subd. (a)(2)(A).) Also, the judge is 

disqualified from handling a case involving a former union or employer client if (1) less 

than two years has passed since the party was a client of the judge or (2) another 

disqualification provision applies. (Code Civ. Proc., § 170.1, subd. (a)(2)(B)(i).) These 

statutory provisions logically imply that an objectively reasonable member of the public 

would perceive judges, who are not disqualified under these provisions, to be impartial. 

For instance, a judge who was a union labor relations attorney could handle labor 

relations cases immediately after appointment to the bench so long as he did not serve as 

a lawyer in the proceeding and none of the parties are former clients. In these situations, 

the trial court’s interest in appearing impartial is not compromised by allowing judges to 

preside over such cases.

The statute provides further examples. A judge is allowed to handle a proceeding 

where a person within four degrees of kinship is a party, but is disqualified if a party is 

“within the third degree of relationship” to the judge. (Code Civ. Proc., § 170.1, subd. 

(a)(4).) Under this provision, a judge may not handle a case where a niece or nephew is a 

party, but not disqualified from a case involving a first cousin. (See People v. Williams

(1997) 16 Cal.4th 635, 653 [brothers are related in the second degree, uncle and nephew 

in the third, and first cousins in the fourth].) The statute demonstrates that, when 

evaluated under by an objectively reasonable person standard, the appearance created by 
6

a judge handling a case involving a first cousin does not unduly impinge upon trial 

court’s interest in the appearance of impartiality.

In addition, a judge is disqualified from a case where, within the past two years, a 

lawyer appearing in the case was associated in the private practice of law with the judge. 

(Code Civ. Proc., § 170.1, subd. (a)(2)(B)(ii).) Thus, an objectively reasonable person 

would perceive a judge is able to be impartial in a case where the judge’s former law 

partner is representing a party when that law partnership has been terminated for more 

than two years.2 

A further illustration of the judiciary’s need to appear impartial is provided by this 

original proceeding. All three members of the panel deciding this case served as judges 

at the Court, the party now appearing before us. While some people might infer the 

appearance of impartiality would have been served by transferring this original 

proceeding to another district or, alternatively, having it heard by justices who had not 

served as superior court judges in Fresno County, that inference is not warranted under 

the objectively reasonable person standard. (Cf. Cal. Rules of Court, rule 10.660.) More 

specifically, no member of this panel “substantially doubts his ... capacity to be 

impartial” or has concluded “the circumstances are such that a reasonable person aware 

of the facts would doubt the justice’s ability to be impartial.” (Cal. Code Jud. Ethics, 

canon 3E(4)(b), (c); cf. Code Civ. Proc., § 170.1, subd. (a)(6)(A)(ii), (iii).)

 

2 These examples establish that the appearance of impartiality is not the be all, end 

all of the judicial system. Instead, the interest in appearing impartial is one of several 

interests that have been considered and balanced in creating the various rules by which 

California’s judicial system operates. Similarly, the Trial Court Act and PERB precedent 

require the Court’s interest in the appearance of impartiality to be balanced against the 

rights protected by the Trial Court Act. (See East Whittier School District (2004) PERB 

Dec. No. 1727, p. 10 [“what constitutes a ‘special circumstance’ necessarily involves a 

balancing of various interests”].) 
7

D. Overbreadth Analysis

Before applying the foregoing objective standard to the evidence presented in this 

case, two points are worth making about analyzing the overbreadth of the Court’s bans on 

union materials. First, the positive effect of the bans on a variety of nonunion materials is 

not a factor that justifies banning union materials. The wearing and display of union 

materials is protected by the Trial Court Act, while nonunion materials are not protected 

by statute. Second, bans on union materials must be narrowly tailored to the special 

circumstances. 

1. Effect of Banning Nonunion Regalia, Displays and Writings

The majority concludes the Court’s interest in appearing impartial justifies the 

breadth of the Court’s rules, and states, “it has been argued that a total ban on insignia 

and regalia is overbroad, particularly with respect to union views”3 and refers to 

nonunion messages such as “Drill Baby Drill” and “Save the Whales.” (Maj. opn., ante, 

at pp. 23-24.) This approach appears to give weight to the salutary effect of banning 

certain messages unrelated to the rights protected by the Trial Court Act and then uses 

that weight as part of the justification for banning all union regalia. Such an approach is 

legally erroneous since the proper framing of the issue is whether the total ban violates 

the Trial Court Act because it interferes with statutorily protected rights. Whether the 

total ban’s prohibition of nonunion materials and messages violates other rights—such as 

rights to due process, freedom of expression and freedom of association—is irrelevant to 

our review of PERB’s overbreadth determination because no such rights are being 

asserted in this proceeding.

Accordingly, PERB did not commit legal error in its overbreadth analysis by 

limiting its inquiry to the impact of the Personnel Rules on union regalia and displays. 

 

3 PERB and the Union challenge the Court’s rules as overbroad only to the extent

the rules affect union insignia and regalia and thereby infringe upon statutorily protected 

rights of the Court employees. 
8

An example of this focused analysis, which distinguished between union and nonunion 

items, is provided by a Massachusetts case involving a sheriff’s directive prohibiting his 

“employees from ‘wearing ... any pins or other [unauthorized] accouterments’ on their 

uniforms.” (Sheriff of Worcester County v. Labor Relations Com. (2004) 60 

Mass.App.Ct. 632, 633 [805 N.E.2d 46] (Worcester).) The labor commission concluded 

the directive violated the Massachusetts labor relations statute4 and ordered the sheriff to 

bargain with the union before imposing a ban on any pins or to refrain from interfering 

with the employee’s rights to wear any pins, including union insignia pins. (Worcester, 

supra, at p. 47.) The appellate court adopted a narrower approach, stating the wearing of 

union insignia was a right protected by the statute and, therefore, was unlike the wearing 

of other items, such as guardian angel buttons or tie clips. (Id. at p. 53.) The court 

concluded that “to the extent the sheriff’s directive prohibited nonunion buttons and other 

nonunion accouterments, the directive did not violate” the Massachusetts statute. (Ibid.) 

Based on this conclusion, the court reversed certain paragraphs of the labor commission’s 

order, but only “insofar as they pertain to badges, pins, and any nonstandard uniform 

attire other than pins and badges containing union insignia.” (Id. at p. 54, italics added.) 

In contrast, the court concluded the labor commission’s determination that the sheriff’s 

directive violated the statute, insofar as it affected union buttons, “was supported by 

substantial evidence and did not amount to an error of law.” (Ibid.) As a result, the court 

affirmed the part of the labor commission’s order that directed the sheriff to refrain from 

interfering with the employees’ right to wear pins containing the union’s insignia. (Id. at 

pp. 47, 54.)

 

4 The statute, section 10 of chapter 150E of the Massachusetts General Law, states 

public employees have the right to engage in concerted activities for the purpose of 

collective bargaining, free from interference, restraint or coercion. Like California’s 

statute, this provision is interpreted to provide public employees with the right to wear 

union insignia absent a showing of special circumstances. (Worcester, supra, 805 N.E.2d 

at p. 52.) 
9

Similarly, the Court’s ban on nonunion regalia and displays does not violate the 

Trial Court Act, and the benefits derived from banning nonunion items cannot be used to 

justify the categorical ban of union regalia. The scope of the ban, however, is properly 

considered at the remedy stage. In this case, PERB’s two-part remedy appropriately 

distinguished the rule’s application to nonunion regalia and displays from the rule’s 

unlawful application to union regalia and displays. 

PERB determined “the Court’s rules prohibiting employees from wearing union 

regalia anywhere in the courthouse and the display of union writings and images in all 

work areas visible to the public were overly broad and interfered with protected rights 

under the Trial Court Act.” To remedy this statutory violation, PERB exercised its 

authority under Government Code section 71639.15 and ordered the Court to (1) cease 

and desist from interfering with employees’ right to communicate with each other in the 

work place and (2) rescind those portions of personnel rules 1.11 and 17.3 to the extent

they “categorically prohibit employees from wearing union regalia in the courthouse” and 

“categorically ban the display of union writings and images in all work areas visible to 

the public.” 

The first part of PERB’s order directed the Court to cease and desist from 

interfering with the rights of its employees protected by the Trial Court Act. This cease 

and desist order prevents the Court from enforcing the personnel rules as they relate to 

union regalia and displays of union writings and images. The order does not affect the 

ban on regalia and displays relating to Mothers Against Drunk Driving, environmental 

causes, animal rights, water issues, sports teams, consumer products such as alcoholic 

beverages, and other nonunion subjects. 

 

5 All further statutory references are to the Government Code unless noted 

otherwise.
10

The second part of PERB’s order directed the Court to rescind those portions of 

personnel rules 1.11 and 17.3 to the extent they affect union regalia and displays of union 

writings and images. This rescission order does not overstep the bounds of PERB’s 

authority because it is specifically tailored to the statutory violation, which relates to 

union materials only. Stated another way, PERB did not direct a complete rescission of 

the fourth paragraph of personnel rule 17.3.1 (display) or of the bullet point in personnel 

rule 1.11 addressing clothing and adornments—a remedy that might have exceeded its 

authority. (See City of Palo Alto v. Public Employment Relations Bd. (2016) 5 

Cal.App.5th 1271, 1278 [court annulled PERB’s order to rescind measure].) 

In summary, PERB did not commit legal error when it gave no weight to the 

potentially salutary effect of the Court’s bans on nonunion materials. Rather, PERB 

properly limited its analysis of a statutory violation to the effect of the bans on union 

regalia and displays.

2. Difficulty in Upholding Total Bans

The parties do not dispute that determining whether special circumstances justify a 

rule affecting union regalia and other union materials involves a balancing test that 

weighs the Court’s interest in appearing impartial against the statutory rights of the 

employees. That balancing process is guided by a variety of principles. (See In-N-Out 

Burger, Incorporated v. N.L.R.B. (5th Cir. 2018) 894 F.3d 707, 715-716 (In-N-Out 

Burger).) One of those general principles has been expressed as follows:

“[E]ven if an employer demonstrates an otherwise sufficient interest in 

restricting its employees’ right to wear protected items, a rule doing so is 

unlawful unless the employer also shows that it is ‘narrowly tailored to the 

special circumstances justifying [its] maintenance.’ [Citation.] Under this 

rubric, wholesale or ‘blanket’ bans are rarely, if ever, lawful.” (Id. at p. 

715.)6

 

6 The Court, accepting the applicability of this principle, argued to PERB in its 

posthearing brief that its dress code was a narrowly-tailored means of protecting the 

Court’s image of impartiality and neutrality. 
11

This principle is significant in this proceeding because it shows special 

circumstances can justify some restrictions that affect the wearing of union regalia, but do 

not necessarily justify a total ban on all union regalia. Here, PERB and the Union 

recognize that the Court’s interest in appearing impartial justifies some restrictions on 

union regalia. They challenge the Court’s bans on the ground that the restrictions were 

overly broad, rather than narrowly drafted to fit the need to appear impartial to an 

objectively reasonable public.

E. Evidence Relating to Perceptions of Union Bias

This section reviews the evidence presented by the Court to support its argument 

that the total ban on union regalia was narrowly tailored and justified by special 

circumstances. What is striking about this evidence is its limited scope.7 The Court 

presented no evidence addressing the impact of union regalia on the public’s perception 

of the Court’s impartiality. The majority’s findings of fact on this issue are unsupported 

by any evidence. Simply put, those findings are the product of conjecture, speculation or 

perhaps the application of a subjective standard of reasonableness based on the supposed 

feelings of a hypersensitive observer. 

1. Summary of the Court’s Evidence

At the hearing before the ALJ, the Court submitted 11 exhibits and the testimony 

of one witness—Sheran Morton, the Assistant Court Executive Officer. Two of these 

exhibits—the Court’s personnel manual and its table of contents—were submitted by the 

Court and the Union as joint exhibits. The Court’s own exhibits were (1) the Court’s 

mission statement; (2) materials from the “PJ/CEO Roundtable: Trial Court Leadership 

 

7 The lack of evidence may be explained in part by counsel’s tactical decision to 

place much stock in the argument that the Court is entitled to a presumption that a total 

ban is justified and, thus, the burden of presenting evidence is shifted to the Union. 

PERB rejected such a presumption, concluding it was not appropriate for all areas of the 

Court’s facilities. The majority and I agree that PERB did not misinterpret the Trial 

Court Act when it rejected such a presumption. (Maj. opn., ante, at p. 20.)
12

for Ethical Excellence,” which included a copy of the Code of Ethics for the Court 

Employees of California; (3) floor plans for its 11 facilities; (4) job descriptions for its 

series of office assistants; (5) a list of wrongful termination and other employment cases 

filed from January 1, 2011, to March 2, 2011, and filed during the 2010 calendar year (24 

and 140 cases, respectively); (6) a list of 146 case titles involving well-known entities as 

parties; (7) the floor plan and photographs depicting level five of the B.F. Sisk Building;8

(8) the floor plan and photographs depicting level four of the B.F. Sisk Building;9 and (9) 

the floor plan and photographs for the fourth floor of the main courthouse. 

Morton was hired by the Court in June 1986 as a legal secretary and has held a 

variety of positions. In 2003, she was promoted to Director of Court Operations. She 

held that position until early 2008 when she was made Assistant Court Executive Officer. 

(See generally, Cal. Rules of Court, rule 10.610 [duties and responsibilities of court 

executive officer].) The ALJ’s proposed decision summarized a portion of Morton’s 

testimony as follows: 

“[Morton] testified that the Court sought to amend the personnel rules to 

include Sections 1.11 and 17.3 in order to further its mission and guard 

against the perception of bias toward one party over another. She also 

testified that the Court already had unwritten rules in place similar to 

Sections 1.11 and 17.3. However, because they were unwritten, the Court 

was having trouble enforcing them and wanted to memorialize them in the 

personnel rules. Morton stated that she was not aware of any employee 

being disciplined for violating the unwritten policies.” 

The other aspects of Morton’s testimony relied upon by the Court is shown by the 

posthearing brief the Court filed with PERB. In that brief, the Court referred to Morton’s 

testimony to support its position that the Court hears many cases involving controversial 

 

8 The Court began moving a large portion of its civil operation into the B.F. Sisk

Building in November 2010 and finished in January 2011. Departments 501, 502, and 

503 and an alternative dispute resolution office are located on level five of that facility. 

9 Level four contains the courtrooms and chambers for Departments 401, 402, 403 

and 404. It also contains a civil clerk’s office. 
13

issues and prominent entities. The Court also stated Morton’s testimony provided “a 

number of examples illustrating how wearing seemingly harmless regalia supporting an 

organization could create a perception of bias.” None of Morton’s examples involved 

union regalia. Instead, one example addressed items supporting Mothers Against Drunk 

Driving and Morton’s opinion as to the impact of those items on criminal defendants and 

their families as to the fairness of the proceedings. The Court stated Morton’s testimony 

provided “similar examples regarding the [Society for Prevention of Cruelty to Animals], 

water rights, and Fresno State University.”10 

2. Bias of Union Members

The majority’s position relies on the fundamental misconception that members of 

the courthouse public believe Court employees who wear or display union items cannot 

be ethical, fair and impartial in carrying out their employment duties and, therefore, the 

public must be shielded from seeing a Court employee wearing or displaying any type of 

union item. 

As foundation for my analysis of public perception of unionized trial court 

employees, this section addresses the basic point of whether union members can be fair 

and impartial employees. Neither the Court nor the majority has argued that actual 

bias—past or future—has been established by the evidence. Thus, actual bias is not part 

of the majority’s justification for the ban of union regalia and the restrictions on displays 

of union writings and images. My review of the record confirms that there is no direct or 

circumstantial evidence that any employee of the Court performed his or her job 

responsibilities in a manner that was biased—that is, adverse to an employer or favorable 

to an employee or union. Similarly, I located nothing in the evidence to support a finding 

that in the future Court employees are reasonably likely to carry out their duties in a 

 

10 As discussed in part I.D.1, ante, concerns about a wide variety of nonunion items 

and messages are irrelevant to whether a ban on union regalia and other union items is 

justified. 
14

manner that is biased against employers and favorable toward unions or unionized 

employees. Therefore, the public’s perception of Court employees who are unionized is 

not influenced by any instance of past bias or by facts suggesting future bias is 

reasonably foreseeable. 

Furthermore, the legislative determinations underlying the Trial Court Act 

preclude a general inference that trial court employees who are union members cannot be 

fair and impartial in handling a case where a union or a member of a union is a party. In 

1968, the Legislature passed, and Governor Reagan signed, the Meyers-Milias-Brown 

Act, which gave local (i.e., city and county) employees, including trial court employees, 

the right to collective bargaining. (See Orange County Employees Assn., Inc. v. Superior 

Court (2004) 120 Cal.App.4th 287, 293 [prior to enactment of Trial Court Act, labor 

relations of trial court employees were governed by Meyers-Milias-Brown Act].) The 

legislative decision to allow trial court employees to unionize was continued in 2000 with 

the adoption of the Trial Court Act. (See Alameda County Management Employees Assn. 

v. Superior Court (2011) 195 Cal.App.4th 325, 329-330 [origins of the Trial Court Act].) 

The Legislature would not have adopted either act if it had determined unionized trial 

court employees could not act impartiality when handling cases involving a union or a 

union member. 

Accordingly, an analysis of the public’s perception of trial court employees who 

are members of a union should recognize, as a general matter, that unionized trial court 

employees are capable of acting impartiality when handling cases involving a union or a 

union member. From this foundation, the following question is presented: What is it 

about union regalia that might trigger an objectively reasonable perception that either the 

trial court employee or the trial court itself is biased? As discussed below, it must be 

something more than just informing the public that the employee is a union member. 
15

3. Public Perception of Bias of Union Members

The reasoning behind public perception justifying a total ban on union regalia is 

that an objectively reasonable member of the public who sees a Court employee wearing 

any type of union pin, button or lanyard will have the following thoughts. First, the 

person will recognize the item as signifying the Court employee is a Union member. Of 

course, the probability of recognition decreases with smaller items and as the distance 

between the member of the public and the employee increases. Second, in the instances 

when the person has recognized the item, that recognition will cause the person to “fairly 

entertain doubts” about the Court’s impartiality in handling a case involving a union or 

union employee. (Wechsler, supra, 224 Cal.App.4th at p. 391.) Apparently, these doubts 

relate to two aspects of the Court’s operation. The first doubt is whether the regaliawearing employee will perform his or her functions at the Court impartially or, 

alternatively, will perform his or her job in a manner that favors a union or union 

employee. The second doubt relates to the possibility that the wearing of the regalia 

places persistent and identifiable pressure on the decision-making process of the Court. 

(See Maj. opn., ante, at pp. 20-21.)

PERB did not commit factual or legal error when it determined the evidence was

insufficient to establish these doubts would be fairly entertained by an objectively 

reasonable member of the public. In fact, there was no evidence to support the majority’s 

reasoning. Stated from another perspective, the evidence presented is not so strong that it 

compels this court to find, as a matter of law, that such doubts would be fairly entertained 

by an objectively reasonable member of the public. (See Dreyer’s Grand Ice Cream, Inc. 

v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer’s) [failure-of-proof 

determinations by a trier of fact are reviewed to determine whether the evidence compels 

as a matter of law a finding in favor of appellant].) 

An objectively reasonable member of the public is a well-informed, thoughtful 

observer and is not someone who is unduly suspicious or hypersensitive. (Haworth, 
16

supra, 50 Cal.4th at p. 389.) Such a person does not harbor a deep-seated anti-union bias 

or prejudice. Under this standard, the member of the public might not have detailed 

knowledge of the provisions of the Trial Court Act, but would be aware of the general 

fact that the Legislature has authorized trial court employees to unionize. (See Santos v. 

Brown (2015) 238 Cal.App.4th 398, 410.) Such a person also would be aware that the 

employees of the Court have chosen to be represented by a union. Consequently, the 

critical piece of information provided to the public by the wearing of the item of regalia 

is not that the Court employee is a union member, but that the employee has chosen to 

communicate that fact to others. In other words, the logic of the Court’s position is that 

objectively reasonable members of the public, who generally do not perceive union 

employees to be biased, begin to have reasonable doubts about the employee’s 

impartiality when the employee communicates his or her union membership by wearing 

an item of regalia. Whether this perception is objectively reasonable cannot be decided 

without considering the particular items of regalia that purportedly creates the 

perception.11 This conclusion is consistent with PERB’s case-by-case approach to 

determining whether special circumstances justify banning a particular button or pin. 

(See East Whittier School District, supra, PERB Dec. No. 1727, pp. 13, 19–20 [test for 

special circumstances “must be an objective one based on an examination of the buttons 

at issue”].) Here, PERB did not commit legal error when it considered the items of 

regalia submitted by the Union as part of its evaluation of whether the restrictions were 

narrowly tailored to the circumstances.

Here, a review of two items of regalia in the record is sufficient to demonstrate the 

lack of narrow tailoring. The first is a square metal pin that is smaller than a quarter (less 

than one square inch) and has the Union’s logo on the top portion, while underneath the 

 

11 The need to look at each item of regalia affected, including the most innocuous, 

when conducting an overbreadth analysis is a reason why total bans on union regalia “are 

rarely, if ever, lawful.” (In-N-Out Burger, supra, 894 F.3d at p. 715.)
17

logo are the letters “SEIU” and underneath the letters is the number “535,” the local that 

represented the Court’s employees before a Union reorganization. This pin lacks any 

slogan and communicates little information about the wearer’s views, except that the 

wearer is a Union member and proud enough of that fact to wear the pin. PERB in its 

role as trier of fact was not compelled, as a matter of law, to find that a member of the 

public reasonably would harbor doubts about the impartiality of a Court employee 

wearing this pin. In other words, the pin is not the tipping point that renders it reasonable 

for the public to fairly doubt the impartiality of the Court’s unionized employees.

The second item is a metal button that is approximately two inches in diameter. 

The center of the button contains the letters “SEIU” with a line above and below the 

letters. At the bottom edge of the button (where the year is located on coins issued by the 

United States Treasury) is the date “September 11, 2001.” The outer edge of the upper 

half of the button contains the slogan, “Remembering and Rebuilding Together.” This 

button and the message it conveys would not cause an objectively reasonable member of 

the public to harbor reasonable doubts about the ability of the wearer to be impartial in 

performing his or her job at the Court. Thus, further justification is needed to prohibit the 

wearing of such a button. Without that additional justification, the categorical ban is 

overly broad and a violation of the Trial Court Act.

In summary, based on the record before us, the majority’s view that unionized trial 

court employees wearing any type of union pin or button would be perceived by the 

objective public as partial towards litigants who are unions or union members is not 

objectively reasonable.12 Rather, it is an affront to these employees.

 

12 The absence of evidence coupled with the majority’s conclusions as to the doubts 

entertained by reasonable members of the public upon seeing a trial court employee 

wearing any type of union regalia have implications that are disconcerting. Generally, 

courts should consider the consequences that flow from the statutory interpretation they 

adopt. (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291.) Here, the 

majority’s construction of the Trial Court Act establishes precedent informing the 
18

4. Pressure on Decision-Making Created by Union Regalia

An additional justification offered by the majority is that an objectively reasonable 

member of the public would fairly entertain doubts about the ability of judges and 

commissioners to act impartially when confronted by the persistent pressure created by 

the inch-square pin or the two-inch button. (See Maj. opn, ante, at pp. 20-21.) The Court 

presented no evidence that any judge or commissioner actually was influenced by any 

button, pin or lanyard worn by an employee. Not only is it insulting to argue that any 

judge would feel pressured by innocuous union regalia worn by his or her unionized staff 

(particularly when judges already know their staff are Union members), there is no 

evidence supporting the finding that a member of the public would reasonably infer that 

judges would abandon their ethical responsibility of acting impartially due to a persistent 

and identifiable pressure created by a small union pin without a slogan or by a two-inch 

button with the slogan “Remembering and Rebuilding Together.” 

The majority cites Cox v. Louisiana (1965) 379 U.S. 559, as the foundation of its 

arguments that the Court has a duty to maintain a neutral appearance, how “public 

actions” may affect the appearance of impartiality, and why laws may protect the judicial 

process from being misjudged by the public. (Maj. opn., ante, at p. 15.) Unlike the 

present case of Court employees displaying Union regalia to show solidarity, Cox

involved 2,000 people parading and demonstrating across the street from a courthouse in 

protest of what they felt were illegal arrests the day before. Tear gas was deployed, and it 

was assumed that the intent of the demonstration was to influence the judges, jurors, 

witnesses or court officials. I do not read Cox as supporting, much less compelling, a 

finding of fact that a judge would be so easily swayed or, alternatively, that the public 

 

superior courts of every county in California that allowing members of the public to see a 

court employee wearing any type of union regalia will create a public perception of bias 

and, moreover, failing to categorically ban such items amounts to shirking their 

responsibilities to the public and to the state judicial system.
19

would reasonably perceive judges were so lacking in resolve that they would be 

influenced by the wearing of the pins or buttons described earlier.

The majority’s conclusion that the public would reasonably entertain doubts about 

the impartiality of the Court’s decision-making if employees were allowed to wear such 

innocuous union regalia has no evidentiary support. It overlooks the evidence in the 

record about the actual items of union regalia worn by employees before the total ban 

was implemented, the lack of any complaints ever by members of the public about the 

Union, and wrongly implies the public views California’s trial judges as willing to 

abandon their ethical responsibilities at the slightest of pressures.

Based on the evidence in the record, PERB did not err when it determined the 

Court failed to carry its burden of justifying a total ban on union regalia. 

F. Other Issues Related to Impartiality and the Scope of the Ban

1. Complaints About Employees

The Court presented no evidence of complaints from litigants or other members of 

the public about employees wearing union regalia. In contrast, the Union presented 

testimony from witnesses that, prior to the adoption of the categorical ban, employees 

routinely wore union regalia on their clothing, including buttons, pins and lanyards, 

without incident or complaint. 

Part of the evidence relied upon by PERB in finding the Court’s interest in the 

appearance of impartiality did not justify a categorical ban on union logos and regalia 

was (1) the Court’s history of having no such policy, written or unwritten, before 

December 1, 2009, and (2) the employee testimony that they routinely wore such items 

without incident before the new policy went into effect. 

The absence of complaints and incidents is relevant to the existence of special 

circumstances and the specific issue of whether the appearance of impartiality justifies a 

total ban. (See Evid. Code, § 210 [definition of relevant evidence].) The various 
20

authorities have not spoken with a single voice about the weight to be given to the 

absence of prior complaints or incidents, but the decisions clearly establish that the 

evidence passes the threshold of relevance. (Cf. Saint John’s Health Center (2011) 357 

NLRB 2078; St. Luke’s Hosp. (1994) 314 NLRB 434, 435 [no evidence any patient 

complained of, or even noticed, the stickers and buttons at issue] with Boise Cascade 

Corp. (1990) 300 NLRB 80, 84 [evidence that pins had been worn for six months without 

incidence was “most important point” in determining absence of special circumstances].) 

Accordingly, PERB did not err when it (1) impliedly determined the Union witnesses 

testified credibly on the absence of incidents or complaints and (2) considered the Court’s 

history in allowing union regalia and the absence of complaints or incidents in making its 

determination that the Court had not carried its burden.

2. Union Caseload

The Court’s exhibit 6 listed 146 titles of cases involving well-known entities as 

parties. The list begins with a case filed in 2002 and includes cases filed in early 2011. 

Only three case titles identify a union as a party. In 2008, Community Regional Medical 

Center sued Carpenters Union Local 701. In 2009, the International Association of 

Firefighters Local 753 sued the City of Fresno. Also, in 2009, the Union sued the Fresno 

County Board of Supervisors. Only one of the three cases involved a private sector 

employer.13 The Court presented no evidence about its caseload for that period. 

 

13 The failure to develop better evidence about union cases handled by the Court 

cannot be attributed to the inexperience of counsel. The Court’s attorney represented the 

Sonoma County Superior Court in an unfair practice case based on charges filed by Local 

1021 of the Union. In that case, the Union challenged the trial court’s imposition of a 

new policy barring staff from wearing union buttons and displaying union signs or 

posters in public areas. The court produced statistics from 1988 through May 5, 2008, of 

the number of cases filed that involved a union as a party. The total was 86 cases 

involving eight different unions. The 44-page proposed decision of the ALJ found the 

Sonoma County Superior Court’s ban on all union regalia violated the Trial Court Act. 

The ALJ’s proposed decision has no authority as precedent and the proceeding did not 

result in a final administrative decision by PERB. 
21

Consequently, PERB did not determine what proportion of the Court’s caseload involved 

a union as a party. However, information about the Court’s caseload is readily available 

to the public in the Court Statistics Report published each year by the Judicial Council of 

California. The 2010 Court Statistics Report contains data from the 2008-2009 fiscal 

year—the last fiscal year completed before the new policy was adopted in December 

2009. That report shows the Court had 43,199 civil filings and 193,836 criminal filings 

during that fiscal year, or a total of 237,035 filings. This data provides some context for 

evaluating the relative importance of the one filing involving a dispute between a union 

and a private sector employer in the nine-year period covered by the Court’s exhibit.

The evidence presented shows that the Court’s interest in appearing impartial in 

private sector union cases arises only rarely. The Court handles few cases involving 

unions and even fewer cases involving a union and a private sector employer. 

Consequently, the interest in appearing impartial in those type of cases is slight, 

especially when the Court’s entire caseload is considered. Allowing so few cases to 

justify a Court policy that impacts the employees’ long recognized and statutorily 

protected right to wear union pins and buttons can hardly be described as the tail wagging 

the dog. It is more comparable to the shake of a leg of a flea on the tail of a Great Dane 

wagging the Great Dane. 

3. Employment Litigation Caseload

The Court argues that its need to appear impartial extends to all types of 

employment disputes and, therefore, it is appropriate to consider the impact of union 

regalia on the parties involved in employment litigation. The Court offered evidence that 

approximately 140 wrongful termination and other employment cases were filed during 

the 2010 calendar year and 24 cases were filed in the first two months of 2011. While it 

is true the Court has a legitimate interest in appearing impartial in these and all other 

cases, these employment cases account for less than one-half percent of the Court’s civil 
22

filings, or one out of every 308 civil filings (43,199 divided by 140). When compared to 

the total filings in the fiscal year before the new rules were implemented, the employment 

cases account for less than one out of every 1,600 filings (237,035 divided by 140). 

Accordingly, the categorical ban is based on a concern that arises in a very small 

percentage of the Court’s cases.

More importantly, the links in the reasoning process that holds innocuous pins and 

buttons adversely affect how the Court appears, to an objectively reasonable member of 

the public, is even more attenuated in general employment litigation cases than it was in 

union cases. The additional step in the reasoning is that regalia-wearing unionized trial 

court employee will not only be biased in cases involving union issues, but also will not 

be impartial in cases where any employee, union or not, is a litigant.14 

An analysis of the impact on public perception of the Court’s employees should 

take into account their status as employees and as union members. First, a blanket 

suspicion that Court’s employees would favor an employee litigant is not objectively 

reasonable. The shared status as employees is an insufficient basis for inferring bias or 

favoritism. Second, the additional fact that Court employees are unionized does not 

justify a blanket suspicion that they would not act impartially in case where an employee 

is a party. Simply because someone is the member of a union does not mean it is 

objectively reasonable to doubt their impartiality in a case where an employee is involved 

in some type of employment dispute. Third, a blanket suspicion of unionized trial court

employees who wear an item of union regalia is not objectively reasonable. If such a 

suspicion were reasonable, the Legislature would have modified the Trial Court Act so 

 

14 American history shows it is not reasonable to infer a union member automatically 

will favor an employee without regard to the matter in dispute. President Reagan once 

was the president of a union representing actors. Yet, in 1981, he fired approximately 

11,500 members of the air traffic controllers’ union when they remained on the picket 

lines. (Skirlick v. Fidelity & Deposit Co. of Maryland (D.C.Cir. 1988) 852 F.2d 1376, 

1377, fn. 1.)
23

that it did not include the long-recognized employee right to wear pins and buttons. (See 

Worcester, supra, 805 N.E.2d at p. 53 [Massachusetts Legislature passed labor relations 

statute for public employees without explicitly overriding the well-established right to 

wear union insignia]; Republic Aviation Corp. v. N.L.R.B. (1945) 324 U.S. 793, 803, fn. 7 

[“right of employees to wear union insignia at work has long been recognized”]; East 

Whittier School District, supra, PERB Dec. No. 1727, p. 13 [wearing union buttons is a 

protected right, absent special circumstances].) Thus, the wearing of regalia does not 

reasonably support the conclusions that such a Court employee automatically would 

favor the party who is an employee or that the regalia indirectly pressures judges or 

commissioners to favor the employee litigant. 

The last layer in the analysis considers the impact on public perception created by 

a particular item of regalia. It is possible that a particular item could create reasonable 

doubts about impartiality. Based on my earlier discussion of the small pin and two-inch 

button, any doubts created by those particular items are not objectively reasonable. 

Relying on the subjective concerns of a litigant employer is not appropriate. As 

explained by our Supreme Court’s view of impartiality, “‘[t]he partisan litigant 

emotionally involved in the controversy underlying the lawsuit is not the disinterested 

objective observer whose doubts concerning the [employee’s] impartiality provide the 

governing standard.’ ” (Haworth, supra, 50 Cal.4th at p. 389.)

Accordingly, the Court’s evidence that 140 cases involving employment issues 

were filed with it in 2010 is not sufficient to carry the Court’s burden of justifying a total 

ban on union regalia. Stated from another perspective, PERB did not err in weighing the 

evidence the Court presented about its caseload. 
24

G. Restrictions on Displays of Union Writing and Images

1. Background

The fourth paragraph of personnel rule 17.3.1 addresses the display of writing and 

images by employees on Court property: “Employees of the Court may not display 

writings or images that are not published by the Court in work areas that are visible to the 

public.” 

The ALJ’s proposed decision stated this rule “is problematic because it creates a 

categorical restriction on all union writings and images without any room for the 

objective case-by-case balancing of interests required by PERB case law. For example, it 

is unclear how the display of a union coffee mug ... in a court reporter’s private office, 

while nominally visible to the public, would detrimentally affect the Court’s image of 

impartiality and neutrality.” PERB concluded the prohibition on the display of union 

writings and images in all work areas visible to the public, like the ban on wearing union 

regalia, was overly broad and interfered with rights protected by the Trial Court Act. 

2. PERB’s Analysis Does Not Contain Legal or Factual Error

The same balancing test applied to items of union regalia worn by employees 

applies to the question of whether special circumstances justify the restrictions on 

displays of union writings and images in work areas. Also, I agree the rule restricting 

such displays is drawn more narrowly than the categorical ban of union regalia as the rule 

restricting displays (1) does not apply to items published by the Court and (2) is limited 

to work areas visible to the public.

The evidence supports PERB’s determination that the rule was overly broad. The 

evidence presented includes two photographs of a mouse pad used at a computer terminal 

in the hallway outside of jury room 5A on the fifth floor of the main courthouse. The 

mouse pad contains the Union’s logo, but it does not appear to include any words or 

numbers, although it is difficult to state that conclusively as the computer’s mouse is 

placed over the center of the pad in each picture. It is inconceivable to me how an 
25

objectively reasonable person would fairly entertain doubts about the impartiality of 

Court employees upon seeing the mouse pad, especially when such a member of the 

public also would be exposed to the Union bulletin board the Court maintains in the fifthfloor hallway. Similarly, PERB correctly determined that exposing the public to Union 

coffee mugs, when a member of the public walks by an open office door of an employee 

with such a mug, would not cause an objectively reasonable person to fairly entertain 

doubts about the impartiality of the Court. In other words, the evidence presented by the 

Court does not compel a finding of special circumstances that justify the ban of union 

writings and images from the offices of Court employees that are visible to members of 

the public when they are using those corridors. Rather, PERB’s determination that the 

rule banning displays of writings and images in work areas visible to the public was 

overly broad is supported by the evidence and is not a misapplication of the test that 

balances employee rights against the employer’s legitimate interest in appearing 

impartial. 

II. OTHER ISSUES

A. Question of Law or Fact

PERB’s decision implies it resolved a question of ultimate fact when it decided the 

Court’s rules were not narrowly drawn to the special circumstances asserted as 

justification for the bans on union materials. The majority does not explicitly state 

whether it resolved a question of law or a question of ultimate fact when it determined 

that special circumstances justified the breadth of the Court’s rules.

For the sake of clarifying the legal foundation of my analysis, I conclude a 

determination that a particular set of restrictions on union items are narrowly drawn to fit 

the special circumstances, established by the evidence, resolves a question of ultimate 

fact. This characterization is appropriate because the existence of special circumstances 

and the scope of the restrictions justified by those special circumstances are matters that 
26

fall within PERB’s area of expertise. (See Boling v. Public Employment Relations Bd.

(2018) 5 Cal.5th 898, 911-913.)

B. Standard of Review

Because a question of ultimate fact is involved, when PERB affirmatively finds 

special circumstances justify a particular restriction on union regalia, that finding is 

reviewed under the substantial evidence rule. (§ 71639.4, subd. (b).) In contrast, when 

PERB determines (as it did in this case) that an employer has failed to carry its burden of 

demonstrating special circumstances justify the restriction as drawn, “the question for a 

reviewing court becomes whether the evidence compels a finding in favor of the 

[employer] as a matter of law.” (Dreyer’s, supra, 218 Cal.App.4th at p. 838.) As 

explained in Dreyer’s, “ ‘where the trier of fact has expressly or implicitly concluded that 

the party with the burden of proof did not carry the burden and that party appeals, it is 

misleading to characterize the failure-of-proof issue as whether substantial evidence 

supports the judgment.’ ” (Ibid.) Evidence compels a finding in favor of a petitioning 

employer as a matter of law when that evidence is (1) uncontradicted and unimpeached 

and (2) of such a character and weight as to leave no room for a judicial determination 

that it was insufficient to support a finding. (Ibid.; see Wells Fargo Bank, N.A. v. 6354 

Figarden General Partnership (2015) 238 Cal.App.4th 370, 390; Valero v. Board of 

Retirement of Tulare County Employees’ Assn. (2012) 205 Cal.App.4th 960, 965.) In my 

view, this is the standard of judicial review applicable to PERB’s determination that the 

Court did not carry its burden as to special circumstances.

C. Redrafting the Personnel Rules

In closing, I recognize that it is not the role of this court, PERB or an ALJ to 

attempt to redraft the personnel rules so that they comply with the Trial Court Act. The 

Legislature has extended to trial court employees the right to meet and confer with trial 

courts over the content of court rules that affect protected rights before the Court can take 
27

unilateral action. (§§ 71360, 71634.2.) Therefore, any redrafting of the personnel rules 

to allow some exercise of the rights protected by the Trial Court Act initially must go 

through that meet and confer process without the interference that might be created by 

dicta or an advisory opinion of this court. 

There are innumerable ways to describe the items to be allowed or prohibited

when balancing the Court’s interest in the appearance of impartiality and the statutory 

right to wear union regalia. This variety speaks directly to the importance of the meet 

and confer requirement imposed by the Trial Court Act. The exact balance cannot be 

made on the record presented, but with appropriate good faith efforts by all parties, it is 

possible to have a workable rule that is not a categorical ban on all union regalia—

whether that rule is the result of an agreement or its adopted by the Court unilaterally 

after negotiations.

______________________

FRANSON, J.