California State University, Chico (O'Connell, Johnson, et al.) (PERB 0729H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARTHA MAIRE O'CONNELL, 	KEVIN
JOHNSON 	and 	KRISTEN WIGREN,
Charging Parties,
v.
THE CALIFORNIA STATE UNIVERSITY,
CHICO,
Respondent.
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) 	Case No. 	SF-CE-271-H
PERB Decision No. 	729-H
April 	14, 	1989
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Appearances: 	Bill Halloway, 	Representative, 	for Martha Maire
O'Connell, 	Kevin Johnson and Kristen Wigren; 	William B. 	Haughton,
Attorney, 	for the California State 	University.
Before Hesse, 	Chairperson; 	Shank and Camilli, Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by California
State University, 	Chico 	(CSU or University) 	to the proposed
decision of the administrative law judge 	(ALJ). 	The ALJ 	found
that CSU violated section 3571(a), 	(b) 	and 	(d) 	of the Higher
Education Employer-Employee Relations Act 	(HEERA or Act)1 by
1The 	HEERA is 	codified at Government Code 	section 	3560 	et
seq. 	Unless 	otherwise indicated, 	all 	statutory references 	are to
the Government Code.
Section 3571(a), 	(b) 	and 	(d) 	states that it shall be
unlawful 	for the 	employer to:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise of 	rights
guaranteed by this 	chapter.
__ )

denying 	the 	right 	of 	access 	to CSU's 	mail 	system and 	interfering
with employees' 	rights 	to form, 	join and participate 	in the
activities 	of 	employee 	organizations 	of 	their own choice.
After a review of 	the 	entire record, 	the Board 	finds 	the
ALJ's 	findings 	of 	fact to be 	free 	from prejudicial 	error. 	In
accordance with the discussion below, 	we 	affirm the ALJ's
conclusions 	of 	law.
FACTUAL 	SUMMARY
Several 	employees 	of 	San Jose State University 	(SJSU) 	who
were members 	of 	the California 	State 	Employees Association
(CSEA), 	formed a dissident organization called Employees 	for
Employees 	(EFE). 	The purpose of the new organization was 	to
represent 	employees 	in grievances 	and work-related 	complaints 	and
to 	inform employees 	of their rights 	under HEERA, 	applicable
collective bargaining agreements, 	and other laws. 	One of the
founders of the group, 	Martha O'Connell 	(O'Connell), 	wrote the
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by this 	chapter.
(d) 	Dominate or interfere with the 	formation
or 	administration of 	any 	employee
organization, 	or contribute 	financial 	or
other 	support to 	it, 	or in any way encourage
employees 	to 	join any organization 	in
preference to another; 	provided, 	however,
that 	subject to rules 	and regulations 	adopted
by the board pursuant to Section 3563, 	an
employer 	shall 	not be prohibited 	from
permitting 	employees 	to 	engage 	in meeting 	and
conferring 	or 	consulting 	during working 	hours
without loss of pay or benefits.
22

EFE 	constitution which was 	a 	document 	patterned 	after 	the 	CSEA
constitution.
During the 	spring of 	1986, 	EFE attempted to distribute
materials 	through the 	internal 	mail 	system at 	SJSU. 	EFE was
first 	informed that 	it 	needed to pay a 	fee 	in order to 	use 	the
mailroom. 	As 	a result of a 	settlement of 	an earlier unfair
practice 	charge,2 however, 	EFE was 	eventually permitted to use
the mail 	system at SJSU free of 	charge.
During the 	summer of 	1987, 	O'Connell, 	on behalf of a group
of 	employees 	at 	SJSU, 	hereafter referred to as 	Concerned
Employees,3 delivered 	to 	the 	CSU mailroom approximately 	500
flyers 	entitled 	"Sick of 	CSEA???? 	Let's 	Network 	for 	Solutions!"
The 	flyer questioned CSEA's 	record 	in areas 	such as pay raises,
grievance representation, 	comparable worth, 	expenditures 	of dues
money, 	etc. 	The 	flyer also 	stated: 	"WE WORK AT SAN JOSE 	STATE
UNIVERSITY AND ARE 	PART OF A GROWING GROUP 	OF 	EMPLOYEES 	WHO ARE
TIRED OF 	THE 	DIRECTION OF 	CSEA." 	The 	flyer 	encouraged 	those
employees, 	who were 	interested in assisting this 	organization, 	to
write or call three of the SJSU employees, 	who were members 	of
Concerned Employees. 	As 	some members were also part of 	EFE,
2The parties 	had 	earlier 	reached 	an agreement 	in a 	separate
unfair practice 	charge which also 	involved payment 	of 	a 	fee 	in
return for distribution rights under the Act 	(SF-CE-223-H).
Violation of 	the 	earlier 	settlement 	agreement 	is 	not 	at 	issue 	in
this case.
3During the 	course of the ALJ hearing, 	this 	new organization
was 	referred to as Concerned Employees. 	Therefore, 	that name
will 	be 	used hereafter in this 	decision.
3

their names were not 	included on the 	flyer 	so 	as 	to prevent 	any
confusion with EFE.
O'Connell 	testified 	that 	she presented 	the 	flyers 	to 	an
unidentified mailroom 	supervisor 	and 	stated 	that 	she wanted 	them
"shotgunned to the employees." 	According to O'Connell, 	this
meant that a 	few copies were to be 	sent to 	each department. 	The
flyers were 	not placed in campus 	envelopes, 	nor were 	they
addressed to 	specific departments 	or employees. 	During a
conversation with Dennis Heffer 	(Heffer), 	vice provost at CSU,
O'Connell was 	told 	that 	she 	should assume that 	the 	flyer was
mailed unless 	she 	heard 	otherwise.
After receiving 	no 	responses 	from any CSU 	employees,
O'Connell 	and another member 	of 	Concerned 	Employees 	sent 	a 	letter
of 	inquiry to 	Heffer. 	Heffer responded that the 	$20
"distribution fee" 	had not been received.4 O'Connell 	responded
in 	turn that 	imposition of 	a 	distribution 	fee 	had 	already been
4California Administrative Code, 	Title 5, 	section 43707,
provides 	that CSU may 	impose 	certain charges 	for use 	of 	the mail
system:
Subject to reasonable regulations, 	including
charges where additional 	costs 	are incurred,
representatives 	of 	verified 	employee
organizations 	shall 	be 	afforded access 	to
campus 	mail 	services 	and mail boxes 	for the
purpose 	of 	distributing material 	to
employees. 	All materials 	distributed under
this 	provision must 	identify the 	employee
organization which 	is 	distributing the
materials. 	One copy of all materials
distributed 	through 	campus 	mail 	services 	or
mail boxes 	must be directed to the Chief
Executive 	Officer 	along with 	the 	name 	and
telephone 	number 	of 	the 	representative
responsible 	for the distribution.
4

determined 	to be 	improper 	in an earlier unfair practice 	case.
The 	flyers 	were 	never distributed 	or 	returned.
Under California Administrative Code, 	Title 	5, 	section
43710, 	employee organizations 	are required to register with the
chancellor's 	office 	as 	a prerequisite 	to 	using the 	internal 	mail
system.5 Neither 	EFE 	nor Concerned 	Employees 	registered with 	the
5California Administrative Code, 	Title 5, 	section 43710,
states:
Verification of 	Employee Organizations.
Each 	employee 	organization which desires 	to
represent 	campus 	employees 	shall 	be required
to 	furnish the Office 	of 	the Chancellor at
the time of initial verification, 	and
subsequently between October 	1 	and 	15 	of 	each
year, 	a written statement containing:
(a) 	The name and address 	of the 	employee
organization, 	its parent body, 	if any, 	and
its affiliates, 	if any.
(b) 	The names 	and addresses 	of the employee
organization's 	principal 	officers 	and all
representatives 	who 	are 	authorized to
represent the organization, 	specifying to
which campus(s) 	each officer's 	and
representative's 	authority 	applies.
(c) 	A description of 	the 	employee
classifications 	the 	employee 	organization 	is
seeking to represent.
(d) 	A copy of the Constitution and By-laws
of the organization, 	its parent body, 	if any,
and its affiliates, 	if any.
(e) 	A statement that one of the
organization's 	purposes 	is 	the 	representation
of CSU employees 	concerning, 	in whole or in
part, grievances, labor disputes, wages,
hours, 	and other terms and conditions of
employment of 	employees.
Employee 	organizations 	shall 	promptly amend
these written 	statements 	during 	each year 	as
changes 	occur. 	The Office of the Chancellor
un	
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chancellor's 	office at CSU.
DISCUSSION
The 	University raises 	several 	exceptions 	to 	the ALJ's
proposed decision. 	The 	University takes 	exception to the ALJ's
finding of 	a violation of 	section 	3571(b) 	based on CSU's
discriminatory 	and 	inconsistent 	application 	of 	the 	verification
requirement. 	CSU 	argues 	that 	the ALJ 	incorrectly 	concluded 	that
because 	EFE was 	permitted to use 	the mail 	system at 	SJSU 	to
distribute materials, 	Concerned Employees 	should have been
allowed 	similar rights 	at CSU. 	Since 	the mailroom at the 	SJSU
campus was 	being used by EFE pursuant 	to 	a 	settlement 	agreement,
which 	did 	not 	specifically 	require prior 	compliance with 	the
verification requirement, 	the 	University argues 	that 	Concerned
Employees' 	denial of use at CSU, 	on grounds of non-compliance
with the verification requirement, 	cannot be grounds 	for a
finding 	of 	discrimination.
Assuming arguendo, 	that EFE was permitted to use the
mailroom 	only 	for the 	reasons 	set 	forth under 	its 	settlement
agreement, 	unrebutted testimony was 	presented that 	at 	least 	one
other organization, 	San Jose State University Staff 	for
Individual Rights, 	was permitted to use the SJSU mailroom to
distribute 	letters 	and 	flyers 	without being a verified
organization under California Administrative Code, 	Title 	5. 	On
this 	basis 	alone, 	the Board affirms 	the ALJ's 	finding that the
University's 	discriminatory 	and 	inconsistent 	application 	of 	the
will 	notify 	each 	campus 	of 	the 	filings
concerning the campus.
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verification requirement 	infringed 	upon Concerned 	Employees'
section 	3568 	access 	rights 	by which the University violated
section 3571(b).
The 	University has 	also 	excepted to 	the 	finding 	that 	the
imposition of 	the 	fee violated the Act. 	We affirm the ALJ's
conclusion that 	imposition of 	a 	$20 	fee by CSU 	for delivery 	of
the flyers was not a reasonable regulation, 	as 	the Board has
previously held that 	the 	exercise 	of 	statutory 	access 	rights
cannot be 	conditioned upon the payment of 	fees 	to 	an employer.
(University of California. 	Berkeley 	(Wilson) 	(1984) 	PERB Decision
No. 	420-H, 	p. 	9, 	reversed on other grounds; 	Regents of the
University of 	California v. 	Public 	Employment 	Relations 	Board
(1988) 	485 U.S. 	, 	99 L.Ed.2d 664; 	Regents of the University of
California 	(Lawrence Livermore National Laboratory) 	(1982) 	PERB
Decision No. 	212-H, 	reversed on other grounds; 	Regents of the
University of 	California v. 	Public 	Employment 	Relations 	Board
(1985) 	168 Cal.App.3d 937.)
The 	University also 	excepts 	to 	the ALJ's 	finding that 	the
flyer 	sought 	to be delivered 	in the present 	case was 	not 	a
"letter" 	within the meaning of the Private Express 	Statutes 	(18
U.S.C. 	1693-1699, 	1724; 	39 U . S . C , 	sections 601-606)6 which
prohibits 	the distribution of 	unstamped mail. 	The 	University
argues 	that 	this 	case 	is 	virtually parallel with the 	recently
decided United States 	(U.S.) 	Supreme Court 	case 	in Regents 	of 	the
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6These 	statutes 	establish the postal 	monopoly of 	the 	U.S.
Postal 	Service 	and 	generally prohibit 	the private 	carriage 	of
letters 	over postal 	routes without payment of postage.
7

University of 	California v. 	Public 	Employment Relations 	Board,
supra, 	485 U.S. 	, 	99 L.Ed.2d 664 	(Regents). 	In Regents, the
U.S. 	Supreme Court held that neither the Letters 	of 	the Carrier
nor the 	Private 	Hands Without Compensation exceptions 	to 	the
federal 	Private 	Express 	Statutes 	permitted a university 	to 	carry
unstamped union letters 	in its 	internal mail 	system.7
We 	agree with 	the ALJ's 	conclusion that 	although 	there 	are
similarities 	between this 	case 	and Regents, Regents 	is 	not
controlling. 	To be covered by the postal 	statutes, 	the Concerned
Employees' 	flyer must fall within the definition of a 	"letter."
The definition of 	a 	"letter," 	codified at 	39 C.F.R. 	section
310.1(3), provides, in pertinent part:
(a) 	"Letter" 	is a message directed to a
specific 	person or 	address 	and 	recorded 	in or
on a tangible object, 	subject to the
following:
(3) 	A message 	is directed to a 	"specific
person or address" when, 	for example, 	it, 	or
the container in which it 	is 	carried, 	singly
or with other messages, 	identical or
different, 	is marked for delivery to a
specific person or place, 	or is delivered to
a 	specific 	person or place 	in accordance with
a 	selective delivery plan. 	Selective
delivery plans 	include 	delivery to particular
persons 	or addresses 	by use of detached
address 	labels or cards; 	address 	lists;
memorized groups 	of addresses; 	or 	"piggy-
backed" 	delivery with 	addressed 	articles 	of
merchandise publications, 	or other items.
Selective 	delivery plans 	do 	not 	include
7The 	"letters 	of 	the carrier" 	exception covers 	letters which
"relate" 	to the 	"current business" 	of the carrier. 	The 	"private
hands" 	exception covers 	carriage of 	letters 	"by private hands
ithout 	compensation." 	Regents 	of 	the 	University of
California v. PERB, 	supra. 	99 L.Ed. 	2d, 	664, 671, 	673.
w
8

distributions 	of 	materials without written
addresses 	to passersby on a particular 	street
corner, 	or to all residents or randomly-
selected residents 	of 	an area. 	A message
bearing the name or address 	of 	a 	specific
person or place is 	a letter even if 	it 	is
intended by the 	sender to be 	read or
otherwise 	used by 	some person or persons
other than or 	in addition to the 	addressee.
In applying the 	"letter" 	definition 	in the underlying
unfair practice charge 	in Regents, 	PERB determined that, 	with the
- -
possible 	exception of union newsletters, 	all the materials 	the
union 	attempted to 	distribute 	through 	the 	University's 	mail
system were 	"letters". 	University of California 	at Berkeley
(Wilson) 	(1984) PERB Decision No. 	420-H, p. 	18, 	fn. 	9.
Here, 	the University primarily relies upon: 	(1) 	the
language 	in the 	regulations 	defining a 	letter as 	a 	"message
directed to a 	specific person or address," 	and 	(2) 	the 	language
defining a 	"message directed to 	a 	'specific 	person or address'"
as 	one, 	inter alia, 	"delivered to a 	specific person or place 	in
accordance with a 	selective delivery plan." 	However, 	this
reliance 	is 	misplaced. 	Under the regulation,
selective delivery plans 	do 	not 	include
distributions 	of 	materials without written
addresses 	to passersby on a particular 	street
corner or to all 	residents 	or randomly
selected residents 	of an area 	.
(Emphasis 	added.)
In the present 	case, 	the uncontradicted testimony was 	that
Concerned Employees 	attempted 	to 	send 	one-page 	flyers 	through 	the
campus mails by 	"shotgunning" 	them. 	During the hearing,
"shotgunning" was defined as 	". 	. 	. 	mean[ing] 	you just send out a
few copies 	to each department 	just as 	is, 	it's 	not 	in an inter-
9

campus envelope, 	which is policy at San Jose State." 	(RT p. 	15.)
Shotgunning was 	also described as 	"You 	just 	take a 	flyer, 	as
many 	as 	you want mailed out you 	take 	them to 	the mailroom and
they 	just 	send out to each department. 	If there 	is 	enough 	for
two 	for 	each department then they 	send 	it out. 	In other words,
it 	is 	not 	in an 	inter-campus 	envelope and 	it does 	not have a
specific 	name on it." 	(RT p. 	23.)
Concerned 	Employees 	attempted 	a 	random distribution 	of 	the
flyer to 	each department. 	The 	flyers were not directed to
specific persons or, 	as 	far as we can tell, 	to 	specific 	locations
in 	each 	department.8 The 	"shotgunning," 	or 	random distribution
of the 	flyers, 	takes 	them outside the definition of a 	"letter"
within the meaning of 	the 	federal postal 	regulations.
This 	finding 	is 	consistent with 	federal 	cases 	addressing
what 	is 	a 	"letter" 	under postal 	statutes and regulations.
In Associated Third Class 	Mail 	Users 	v. 	United 	States 	Postal
Service 	(D.C. 	Cir. 	1979) 	600 F.2d 824, 	the court, 	in deciding
whether 	advertising 	circulars 	addressed 	to 	particular persons 	or
locations were 	"letters" 	under postal 	statutes 	and regulations,
concluded that 	the 	circulars 	were 	letters 	as 	they were 	intended
for the perusal 	of 	the addressees. 	The 	court 	found that 	the
determining 	factor was 	that 	the 	sender's 	goal was 	to reach the
particular persons 	who had been 	identified 	as 	most 	likely 	to 	be
interested 	in 	the 	advertised products.
88The record does 	not 	reflect what was 	to happen with 	the
flyers 	once 	they 	reached 	each department.
In another major case addressing the 	issue of what 	is 	a
10

"letter," 	National Association of Letter Carriers. 	AFL-CIO
(10th Cir. 	1972) 	470 F.2d 265, 	the court held that the defendants
violated the postal 	monopoly by delivering Christmas 	cards. 	The
court 	found that a 	"letter" 	is:
. 	. 	. 	a message in writing, printed or
otherwise in whole or part, 	addressed to a
particular person or 	concern and may be 	in a
sealed 	or unsealed 	envelope 	or 	not 	in an
envelope at all. 	The Court 	further finds 	and
concludes 	that the ordinary Christmas 	card
when 	addressed to 	a particular person or
concern is 	a 	letter within the meaning of 	the
above definition.
As 	testimony 	and 	case 	law 	support 	the 	finding 	that 	the
Concerned Employees' 	flyer does 	not 	fit within the postal
regulations 	definition of 	a 	"letter,"9 the Board affirms 	the
ALJ's 	decision and 	conclusions 	of 	law 	in accordance with 	the
discussion above.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in the 	case, 	and pursuant 	to 	section 	3563.3
of 	the Higher Education Employer-Employee Relations Act, 	the
Board 	orders 	that 	the California 	State 	University 	Board 	of
Trustees 	and its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
a. 	Denying to 	employee 	organizations 	rights
guaranteed 	by 	the 	Higher 	Education 	Employer-Employee 	Relations
9As 	the Board 	finds 	that the 	flyer in this 	case 	is 	not a
"letter" 	within the federal postal 	statutes, 	there 	is 	no need to
determine whether the mail 	system at 	the Chico 	campus 	overlaps
with the postal routes 	in Chico.
11

Act, 	including the right of access without 	charge to the
California 	State 	University's 	mail 	system;
b. 	Interfering with the rights 	of 	employees 	under the
Higher Education Employer-Employee 	Relations Act, 	including the
right to 	form, 	join and participate 	in the activities 	of 	employee
organizations 	of 	their own choice.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES OF THE ACT:
a. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	sign and
post 	at 	all 	locations 	on the Chico 	campus where notices 	to
employees 	are customarily placed, 	copies 	of the Notice attached
hereto 	as 	an Appendix. 	The Notice must be 	signed by an
authorized agent 	of 	the 	California 	State 	University 	Board 	of
Trustees 	indicating that 	the CSU will 	comply with the 	terms 	of
this 	Order. 	Such posting 	shall 	be maintained 	for a period of
thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall be
taken to 	insure 	that the Notice 	is 	not reduced 	in 	size, 	altered,
defaced 	or 	covered by any other material.
b. 	Written notification of 	the 	actions 	taken to
comply with this 	Order shall 	be 	given to 	the Los Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with his 	or her 	instructions 	and 	shall 	be 	served 	concurrently 	on
the 	charging parties.
Chairperson Hesse 	and 	Member Shank 	joined 	in this 	Decision.
12

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-271-H,
Martha 	Maire 	O'Connell. 	Kevin 	Johnson and 	Kristen Wigren v.
California 	State University 	(Chico). 	in which all parties 	had the
right to participate, 	it has 	been 	found that the California 	State
University, 	Chico, 	violated Government Code sections 	3571(a), 	(b)
and (d).
As 	a 	result 	of 	this 	conduct we 	have 	been ordered 	to post
this 	Notice, 	and will abide by the 	following. 	We will:
1. 	CEASE AND DESIST FROM:
(a) 	Denying to employee organizations 	rights
guaranteed 	by 	the 	Higher 	Education 	Employer-Employee 	Relations
Act, 	including the right of 	access without 	charge to 	the
California 	State 	University's 	mail 	system.
(b) 	Interfering with the 	rights 	of 	employees 	under the
Higher Education Employer-Employee Relations Act, 	including 	the
right 	to 	form, 	join and participate 	in the 	activities 	of 	employee
organizations 	of their own 	choice.
Dated: 	CALIFORNIA STATE 	UNIVERSITY, 	CHICO
By
Authorized 	Agent
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.