On May 6, 1982, a hearing was held by a Commission Hearing Officer in order to take evidence concerning an unfair labor practice charge filed by the Clay County Education Association (hereinafter the Union) against the School Board of Clay County, Florida, alleging that the School Board violated Section 447.501(l)(a), Florida Statutes (1981), by promulgating and circulating among its teaching personnel two memoranda purporting to regulate their attire. The Union contends that the memoranda constitute over broad and unlawful restrictions on employee solicitation. The Union also contends that the wearing of tee shirts bearing the inscription TEACHERS ARE PEOPLE TOO! CCEA/FTP-NEA," surrounding a cartoon representation of seven adults, one child and a dog, constitutes protected activity, the exercise of which the School Board chilled by publishing its memoranda. The School Board, on the other hand, contends that its memoranda were issued for the purpose of encouraging its teachers to abide by the requirements of Chapter 447, Part II, Florida Statutes (1981), which prohibit instigating or advocating support, in any positive manner. for an employee organization's activities, from grade school or high school students during classroom time. The School Board denies that its memoranda constitute an over broad restriction of employee solicitation or distribution and that the wearing of the tee shirts in question constitutes protected activity.

On July 6, 1982, the Hearing Officer issued his recommended order in which he concluded that, by promulgating and publishing its memoranda, the School Board interfered with, restrained, and coerced public employees in the exercise of rights guaranteed them under Chapter 447, Part II, Florida Statutes (1981), in violation of Section 447.501(1)(a). The School Board filed timely exceptions to the recommended order. The Union also filed an exception to the portion of the recommended order which recommended that its motion for attorney's fees be denied.

The Commission has reviewed the entire record and finds that the Hearing Officer's findings of fact are supported by competent substantial evidence in the record and that the proceeding upon which the findings of fact are based comply with the essential requirements of law. Accordingly, the Hearing Officer's findings of fact are adopted as the Commission's findings of fact  120.57(1)( b)9, Fla. Stat. (1981).

The School Board has taken exception to various findings of fact of the Hearing Officer through its exceptions numbered 3a-h. Exceptions 3a, b, c, d, f, g, and h attack the Hearing Officer's failure to make certain proposed findings, each of which was rejected by the Hearing Officer. We find that the School Board's proposed findings were properly rejected by the Hearing Officer. Further, even if the record supports some of these proposed findings, the Hearing Officer's failure to adopt them is at most harmless error because they are not necessary to and would not alter our decision in this case. These exceptions are therefore rejected. Exceptions 3a and e complain that the hearing officer failed to rule on proposed findings of fact numbered 1, 13, and 14. A review of the record reveals that these proposed findings were substantially adopted. HORO at 6, 10. These exceptions are therefore rejected. The remaining exceptions pertain to the Hearing Officer's conclusions of law. They are each rejected for the reasons set forth below.

As the Hearing Officer correctly found, the School Board's memoranda constitute two separate and distinct violations of the collective bargaining rights of Clay County teachers. The memorandum of December 16, 1981, places over broad restrictions upon employee solicitation. Additionally, both memoranda, which forbid the wearing of union insignia, interfere with, restrain, and coerce employees in the exercise of rights guaranteed by Chapter 447, Part II, Florida Statutes (1981).

While we agree with the Hearing Officer's result, we differ with his interpretation of Sections 447.509(l)(c) and 447.501(2)(f), Florida Statutes (1981). The Hearing Officer interpreted those provisions too narrowly by concluding that they only prohibited teachers from instigating or advocating "student participation in walk-outs, picketing, or other union activities transpiring during classroom time." HORO at II. Rather, those provisions were intended to prohibit teachers from bringing labor disputes into the classroom and seeking support or participation in union matters from students or creating a disruption. Thus, we sustain the School Board's exceptions 4 and 5, to the extent that those exceptions accurately contend that the Hearing Officer's interpretation of the statutory provisions was too narrow. However, we hold that the tee shirts in issue did not instigate or advocate support within the meaning of those provisions.

We note that the wearing of the tee shirts constitutes speech and not conduct. Tinker V. Des Moines Independent School District, 393 U.S. 503 (1968). No rational distinction can be drawn between the wearing of tee shirts and the wearing of arm bands, the latter of which was held to constitute protected speech in Tinker. Of course, speech may be regulated in the school setting while the School Board shows that the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the school." Tinker at 509. Yet, in the case at bar, there was no competent evidence presented that the wearing of the tee shirts caused any classroom time to be spent discussing union matters, that teachers spoke to students about union matters in any manner, or that any form of disruption or potential disruption of school activities occurred. Thus, the wearing of the tee shirts under these circumstances carries constitutional, as well as statutory protection.

If we were to construe the phrase "instigate or advocate support" contained in the statutory provisions to include the wearing of tee shirts with a union slogan which is, on its face, innocuous, we would hold that no union insignia could be worn by teachers where they may have contact with students. Indeed, such a broad reading of the provisions would render them unconstitutional under Tinker, and we must therefore presume that the Legislature did not intend such a meaning. The limiting language "in any positive manner" contained in the statute indicates a legislative intent that the prohibition be limited to situations where teachers affirmatively take some action, rather than merely wearing a tee shirt with an innocuous message on it. Moreover, Section 447.501(3), Florida Statutes (1981), contains a specific legislative declaration that parties' free speech rights not be infringed. This provision must be read in pari materia with Sections 447.509(l)(c) and 447.501(2)(f) Florida Statutes (1981). The result of the mutual construction of the various statutory provisions and consideration of the constitutional implications compels the conclusion that Sections 447.509(1)(c) and 447.501(2)(f) do not prohibit the wearing of the tee shirts in issue. The School Board's exceptions numbered 11, 13, and 19 are accordingly rejected.

By construing the language in Sections 447.509(1)(c) and 447.501(2)(f), not to prohibit the wearing of the tee shirts in issue, we reaffirm our earlier decisions in Dade Teachers' Association V. United Teachers of Dade, 7 FPER 12142 (1981), and United Faculty of Florida V. Board of Regents, 3 FPER 304 (1977), aff'd sub nom Board of Regents v. PERC, 368 So.2d 641 (Fla. 1st DCA 1979), cert. denied, 379 So.2d 202 (Fla. 1979), cited with approval in United Faculty of Florida V. Board of Regents, No. AH-110 (Fla. 1st DCA July 27, 1982). In Dade Teachers' Association, we held that a union steward did not "instigate or advocate support" as contemplated by the statute where he sent a student to distribute union materials during class time where it was not shown that the student actively supported the message. Similarly, in the case at bar, there was no showing the students were asked to nor supported any union activity. The tee shirt is no different than a union button, diploma on the wall, or piece of jewelry inscribed with the name of a fraternal organization. The School Board's sixth exception is accordingly rejected.

In addition to Commission precedent, our decision is in accord with the most recent decisions of the National Labor Relations Board (NLRB). In Holladay Park Hospital, 262 NLRB No.26,110 LRRM 1305(1982), the NLRB held that a hospital committed an unfair labor practice by threatening discipline against nurses who wore yellow ribbons, which were a known symbol indicating support of ongoing collective bargaining activities. In a manner similar to the case at bar, the hospital required that nurses "wear uniforms which meet professional standards" and the hospital contended that the reason for the rule was to avoid nurses involving patients and physicians in the labor dispute. However, the hospital allowed nurses to wear ribbons at other times, and significantly, there was "no evidence that the wearing of the yellow ribbons actively interfered in any way with patient care." 110 LRRM at 1306. Similarly, in the case at hand, the School Board allowed teachers to wear tee shirts at other times and failed to demonstrate any interference caused by the tee shirts with teaching responsibilities or appropriate discipline in the classroom.

Thus, like the wearing of other union insignia, the wearing of the tee shirts in issue constituted protected activity. Broward County Classroom Teachers' Association v. School Board of Broward County, 6 FPER 11132 (1980); see Republic Aviation Corp. v. NLRB, 324 U.S. 793(1945); NLRB V. Essex Wire Corp., 245 F.2d 589 (9th Cir. 1957). There is no meaningful distinction between a union pin which states the name or slogan of a union on it and a tee shirt which contains essentially the same information in slightly larger form. We reemphasize that this is not a case where the School Board is attempting to regulate dress of teachers by preventing the wearing of tee shirts. Rather, the School Board's memoranda were directed toward tee shirts containing the union slogan. Under such circumstances, the School Board's memoranda interfere with and restrain the exercise of the protected rights of teachers to engage in concerted activities for the purpose of collective bargaining. 447.301(3), Fla. Stat. (1981).

We agree with the Hearing Officer that the School Board has failed to establish special circumstances which require a restriction on the protected activities of teachers. There was no evidence of disruption, decreased work output, or discussion in the classroom concerning the tee shirts. If the tee shirts actually presented any sort of problem to the operation or functioning of the schools, the School Board failed to show it through competent substantial evidence. Moreover, Sections 447.509(1 )(c) and 447.501(2)(f) themselves fail to provide special circumstances which justify the restriction of protected activity. These provisions govern situations not presented. Further, they are not "circumstances" as argued by the School Board, but statutory provisions which cannot be applied in derogation of Section 447.501(3). The School Board's exceptions numbered 7, 9, 10 and 13 are therefore rejected.

The Commission also agrees with the Hearing Officer that in its memorandum of December 16, 1981, the School Board distinctly implies that it may discharge or otherwise discipline employees displaying at any time any message or wearing apparel which may be construed as advocating support for a union or union activities. This memo indicates that a teacher risks discipline at any time he or she displays a message which later, in the discretion of some other individual, is construed as advocating support for a union. The restriction is not limited to the classroom. Although the record does not indicate that any teacher has been disciplined, any teacher wearing the proscribed tee shirt was subject to discipline at any time. This over broad restriction on employee solicitation has a distinct chilling effect by placing employees on notice that they face serious and adverse consequences if they engage in protected activity. Moreover, it is not clear from the memoranda precisely what activity is prohibited, thus chilling activity beyond the wearing of the tee shirts in issue and forcing the teachers into attempting to anticipate what will later be determined to be prohibited. The over broad memorandum without question violates employees' rights to solicit. Okaloosa- Walton Junior College Board of Trustees V. PERC, 372 So. 2d 1378 (Fla. 1st DCA 1979); Dade Teachers Association V. School Board of Dade County, 7 FPER  12398 (1981); Florida Nurses Association V. Southeast Volusia Hospital District, 3 FPER 273 (1977). That the School Board may not have intended such a broad proscription is simply not material. The School Board's exceptions numbered 14, 16, and 17 are therefore rejected.

The School Board clearly has the authority to prohibit the conduct described in these provisions and to promulgate rules or memoranda to do so. However, unlike the restrictions in the memoranda in this case, such restrictions must be narrowly drawn to forbid no more than the prohibited conduct. Dade Teachers Association V. School Board of Dade County, 7 FPER 12398 (1981); Sarasota County' Teachers Association V. School Board of Sarasota County, 6 FPER  11048 (1980), appeal dismissed, 6 FPER 11126 (1980). They may not infringe upon protected activities.

The statutory prohibition against teachers' involvement of students in their labor disputes during classroom time is a valid restriction of teachers' rights to free speech and self-organization. Therefore, teachers have no statutory right to call students to action. Had the tee shirts clearly asked students to take some action in support of the teachers' labor dispute, another issue would be presented. But the tee shirts in issue did not ask for action. Nor can we infer that the message "teachers are people too" asks students to take any action or that students would, in fact, take some action. Where, like here, teachers' protected activity neither interferes with their teaching duties or responsibilities nor involves students in a labor dispute issues, it does not lose its protected status. While we can understand the School Board's desire to keep the labor dispute out of the classroom, we cannot accept the School Board's position that the mere wearing of these tee shirts per se unlawfully involves their students in that dispute. The statutes at issue were not intended to and indeed could not insulate students from gaining any knowledge about an ongoing labor dispute. Rather, they were intended to prevent teachers from using their positions of authority to affirmatively involve their students in the dispute. There is no evidence of such action in this case. For all of these reasons, we agree with the conclusions of law reached by the Hearing Officer on the merits of the case.

In so ruling, we wish to emphasize that we are not necessarily agreeing with or endorsing the activities of the individuals involved in this case. It is not our function to judge the wisdom or taste of the concerned activities of employees; rather, we must consider only whether those activities are protected by Section 447.301. Labor disputes often involve tactics and strategies which might appear unwise or unnecessary to those of us not directly involved in the dispute. However, we must be guided by the language and policy of the statutes, not our own personal opinions of the propriety of the activities involved.

We disagree with the conclusion of law reached by the Hearing Officer on the issue of attorney's fees. The Charging Party was not required to prove that the School Board's actions were extremely blatant or disruptive of the collective bargaining process, as the Hearing Officer seems to suggest. Rather, the standard is whether the charged party "knew or should have known that its conduct was in violation of [the applicable unfair labor practice provision)." IBPAT V. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981). Where the charged party knew its conduct was unlawful, the violation is said to be "blatant," and fees will be awarded against it. Additionally, even if a charged party did not subjectively know its conduct was unlawful, when the law is sufficiently clear or well-settled through decisions of the courts, this agency, or their equivalents in other jurisdictions, that a charged party exercising reasonable care and judgment should have known that its conduct was unlawful, an award of attorney's fees is appropriate.

While the issue concerning the wearing of union insignia was somewhat novel concerning its interaction with Section 447.509(1)(c), Florida Statutes (1981), the facial overbreadth of the School Board's memorandum was plain and in violation of well settled principles of law. See Okaloosa-Walton Junior College V. PERC, 372 So.2d 1378 (Fla. 1st DCA 1979); Dade Teachers Association V. School Board of Dade County, 7 FPER 12398 (1981); Florida Nurses Association V. Southeast Volusia Hospital District, 3 FPER 273 (1977). Accordingly, we hold that the School Board knew or should have known that its memoranda was unlawful and therefore we sustain the Union's exception and grant the union's motion for attorney's. While attorney's fees are questionable concerning the issue of the wearing of union insignia, because the factual circumstances which prove the maintenance of the over broad rule are substantially identical to and inseparable from those necessary to show the maintenance of the policy restricting the wearing of insignia, no partitioning of the attorney's fee is warranted.

Based on all of the foregoing, we make the following conclusions of law:
1. The School Board is a public employer within the meaning of Section 447.203(2), Florida Statutes (1981).

2. The CCEA is an employee organization within the meaning of Section 447.203( 10), Florida Statutes (1981), and is the certified bargaining agent for a unit of instructional personnel employed by the School Board defined:

INCLUDED:
Classroom Teachers, Speech Correctionist (Special Education), Home Bound Teachers, School Psychologist, Visiting Teacher, Special Education Teacher, Speech Therapist, Helper Teacher, Psychometrist, Occupational Therapist, Learning Center Manager.

EXCLUDED:
Superintendent of Instruction; Assistant Superintendent of Instruction; Assistant Superintendent for Administration and Finance; Assistant Finance Officer and Purchasing Agent; Superintendent for Operation; Coordinator of the School Lunch Program; Coordinator of the Exceptional Child Program; Coordinator of Adult Vocational Education; Coordinator of Elementary Education; Coordinator of Certified Personnel; Coordinator of Certified Personnel Programs; Coordinator of Textbooks; Coordinator of Textbooks and Materials; Coordinator of Career Education; Director of Pupil Personnel Services; Director of Vocational and Technical Education; Director of Bus Transportation; Coordinator of Data Processing; Attendance Officer; Payroll and Non instructional Clerks; Principals; Assistant Principals.

3. Mr. Jesse P. Tynes, Superintendent, and Mr. Martin E. Miller, Assistant Superintendent for Personnel and Labor Relations, were at all times material herein, agents and representatives of the School Board.

4. By promulgating and publishing its memoranda of December 16, 1981, the School Board interfered with, restrained or coerced public employees in the exercise of rights guaranteed them under Chapter 447, Part II, Florida Statutes (1981), in violation of Section 447.501(1 )(a), Florida Statutes (1981).

5. The School Board knew or should have known that its memoranda constituted an unfair labor practice.

The Commission ORDERS that:
1. The School Board shall cease and desist from interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Chapter 447, Part II, Florida Statutes (1981), by;

(a) Maintaining over broad restrictions on employee solicitation.

(b) Prohibiting the wearing of tee shirts because they bear the slogan "TEACHERS ARE PEOPLE TOO! CCEA/FTP-NEA" surrounding cartoon representation of seven adults, one child and a dog.

(c) In any like or related manner, interfering with the exercise of employee rights guaranteed by Chapter 447, Part II, Florida Statutes (1981).

2. The School Board shall take the following affirmative action:

(a) Notify the CCEA and all of its teachers in writing that the memorandum of December 16, 1981, and March 24, 1982, concerning proper conduct and dress, are rescinded and are of no effect or force.

(b) Post immediately for sixty (60) days, in conspicuous locations, where all School Board employees may be reasonably apprised of their contents, and where notices to employees are customarily posted, the attached Notice to Employees. Copies of the notices shall be signed by the School Board's authorized representative prior to posting. The School Board shall take reasonable steps to ensure that the notices are not altered, defaced or covered by any other material.

(c) Pay to the CCEA its costs and reasonable attorney's fees incurred in the prosecution of this proceeding.

It is so ordered.