Los Rios Community College District (PERB 0833E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE M. 	DEGLOW,
Charging 	Party,
v.
LOS RIOS COMMUNITY COLLEGE DISTRICT,
Respondent.
)
)
) 	Case No. 	S-CE-1298
PERB 	Decision No. 	833
August 	10, 	1990
)
)
)
)
)
)
)
Appearances: 	Annette M. 	Deglow, 	on her own behalf; 	Susanne M.
Shelley, 	General Counsel, 	for the Los 	Rios Community College
District.
Before Hesse, 	Chairperson; 	Shank and Cunningham, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on appeal 	by Annette
M. 	Deglow 	(Deglow) 	of a Board agent's dismissal of her charge
that 	the 	Los 	Rios 	Community College 	District 	(District)
discriminated 	against 	her 	by 	refusing 	to 	deliver 	her personal
mail 	through 	the 	inter-campus 	mail 	system and 	thereby violated
section 3543.5(a) 	and 	(d) 	of the Educational Employment Relations
Act 	(EERA).1 We have reviewed the dismissal 	and affirm 	it
LEERA 	is 	codified at Government Code 	section 	3540 	et 	seq,
Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(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. 	For purpose of

consistent with 	the 	following discussion.
The 	essence 	of 	Deglow's 	allegations 	against 	the District
is:2 (1) 	as an employee of the District and a member of 	an
uncertified employee organization, 	Deglow, 	both as 	an individual
and a member of 	that organization, 	publicly 	challenged 	the
District 	and 	exclusive 	representative 	regarding 	employee 	rights
under EERA; 	(2) 	the District had an inter-campus 	mail 	system used
for both 	administrative 	communication 	and 	distribution 	of
communications between faculty members; 	(3) 	the District has
always 	permitted 	employees 	to 	communicate with 	each 	other 	through
the inter-campus mail 	system; 	and, 	(4) 	the District inspected the
letters 	deposited by 	Deglow and 	then refused the 	use 	of 	the
inter-campus 	mail 	system 	to 	send 	individually 	addressed
envelopes. 	Deglow charges that the District's 	action in this
regard was 	not 	only discriminatory 	in retaliation 	for the
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
2For purposes 	of reviewing the appeal, 	we assume that the
essential 	facts 	alleged 	in the charge are true. 	(San Juan
Unified School District 	(1977) 	EERB Decision No. 	12.) 	(Prior to
January 	1, 	1978, 	PERB was known as the Educational Employment
Relations 	Board.)
22

exercise 	of 	her rights 	under 	EERA,3 but 	interfered with her 	right
to 	communicate with her coworkers. 	She 	further alleges 	that 	the
District's 	actions 	constituted 	domination 	and 	interference 	with
an employee organization under EERA section 	3543.5(d).
Deglow 	correctly 	states 	that 	the 	standard 	for 	determining
whether a discrimination violation of 	section 	3543.5(a) 	has
occurred was 	enunciated 	by 	the 	Board 	in Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210. 	As 	explained further in
Palo Verde Unified School District 	(1988) 	PERB Decision No. 	689,
to 	state a prima 	facie 	case of discrimination, 	Deglow must 	show
she participated 	in protected activity, 	the 	employer had
knowledge of 	such participation, 	the 	employer took adverse 	action
against her, 	and that action was 	motivated, 	or would not have
been taken but 	for the protected 	activity. 	There 	is 	no 	question
that 	Deglow engaged 	in protected activity. 	The text of the
letters 	sought 	to 	inform 	individual 	faculty members 	about 	a
settlement 	agreement 	arising 	from unfair practice 	charges 	she 	had
filed 	against 	the 	recognized 	bargaining 	agent 	regarding 	the
return of agency 	fee monies. 	Her charges 	also allege knowledge
of her activities 	by the District.
However, 	Deglow does 	not allege adverse action cognizable
under EERA. 	Rather, 	the District 	simply denied the charging
3It 	is 	not 	clear 	from the content of 	the letter, 	nor 	from
the 	charges 	filed, 	whether Deglow was 	sending this 	as 	a personal
correspondence 	or on behalf 	of 	the 	uncertified 	labor
organization. 	However, 	Deglow's appeal of the regional
attorney's 	dismissal 	indicates 	that 	she 	is 	asserting the 	right 	of
an 	"individual" 	to use the 	inter-campus 	mail 	system.
33

party's 	request 	to 	carry unstamped personal 	mail 	through 	its
inter-campus 	mail 	system. 	Notably, 	EERA provides 	for the right
of 	access 	to an employer's 	facilities 	only to an employee
organization.4 Moreover, 	the District was 	foreclosed 	from
carrying 	such mail 	by the 	United 	States 	Postal 	Regulations 	as
discussed infra. 	Deglow, 	in effect, 	objects to the District's
act of 	refusing to take an illegal 	action. 	Refusal 	to 	commit an
illegal 	act does 	not 	constitute 	an adverse 	action under 	EERA.
In Regents 	of 	University of California v. 	Public 	Employment
Relations 	Board 	(1988) 	485 	U.S. 	[99 L.Ed.2d 664], 	the
United 	States 	Supreme Court 	addressed the parameters 	of 	the
Private Express Statutes 	(18 U.S.C, 	secs. 	1693-1699, 	39 U.S.C,
secs. 	601-606). 	This statutory scheme acts to establish the
United States 	Postal 	Service 	as 	a 	monopoly by prohibiting 	others
from carrying letters over postal routes. 	(Id. 	at p. 	671.) 	Two
exceptions 	to 	the 	general prohibition against private 	carriage 	of
4In 	her 	charge 	Deglow did 	not 	specifically 	reference 	section
3543.l(b) which states:
Employee organizations 	shall have the right
of 	access 	at reasonable times 	to areas 	in
which employees work, 	the right to use
institutional bulletin boards, 	mailboxes, 	and
other means of 	communication, 	subject to
reasonable regulation, 	and the right to use
institutional 	facilities 	at 	reasonable 	times
for the purpose 	of 	meetings 	concerned with
the 	exercise 	of 	the 	rights 	guaranteed by this
chapter.
44

letters 	include the 	"letters 	of 	the 	carrier"5 and the 	"private
hands"6 exceptions. 	In Regents. 	the court found neither
exception to 	be 	applicable 	to 	a 	letter 	from an uncertified union
to university employees. 	For the reasons 	discussed below, 	we
find 	that 	it makes 	no difference 	for purposes 	of 	these 	two
exceptions whether the 	sender 	is 	an individual 	employee 	or an
uncertified 	union.
The 	Supreme 	Court 	clearly 	defined 	the private-hands
exception, 	which allows persons 	or entities 	other than the 	United
States 	Postal 	Service to carry 	letters, 	as being an exception
that 	allowed 	only 	" . . . 	gratuitous 	carriage 	undertaken 	out 	of
friendship, 	not pursuant to a business 	relationship." 	(Regents
of 	the 	University of 	California v. 	Public 	Employment 	Relations
Board, 	supra, 	at 99 L.Ed. 	p. 	674.) 	The court specifically held:-
. 	. 	. 	the private hands exception is
available 	only when there 	is 	no 	compensation
of 	any kind 	flowing 	from the 	sender 	to 	the
carrier." 	(Id. 	at p. 	674.)
5The 	"letters 	of the 	carrier" 	exception is 	stated at
18 U.S.C, 	section 1694 	[18 U.S.C.S, 	sec. 	1694] 	and provides,
in pertinent part:
Whoever . 	. 	. 	carries, otherwise than in the
mail, 	any letters or packets, 	except such as
relate 	. . . 	to 	the 	current business 	of 	the
carrier . 	. 	. 	shall, except as otherwise
provided by law, 	be 	fined not more than $50.
6The 	"private hands" 	exception is 	codified at 	18 	U.S.C,
section 1696(c) 	[18 U.S.C.S, 	sec. 	1696(c)]:
This 	chapter 	shall 	not prohibit 	the
conveyance 	or transmission of 	letters 	or
packets 	by private hands 	without
compensation.
55

In 	explaining the 	concept of 	compensation as 	used here, 	the
court 	noted:
Thus, 	"compensation" 	has been read to
encompass 	the 	non-monetary 	consideration
that 	is 	implicit 	in a business 	relationship.
(Id. 	at 675, 	citing United States v. 	Thompson
28 F Cas 97 	(No. 	16,489) 	(Mass 	1846).)
The 	relationship between the 	employer and 	its 	individual
employee 	is 	such a business relationship, 	as 	it 	involves 	the
exchange of benefits or a quid pro quo. 	Thus, 	the carriage of
Deglow's 	letters 	is 	not permitted under this 	exception.
Furthermore, 	the documents 	to be delivered here do 	not 	fall
within the 	other 	exception to 	the 	Private 	Express 	Statutes;
namely the 	"letters of the carrier" 	exception. 	In Regents- -. . 	the
Supreme Court 	noted that to 	fall within this 	exception, 	the
letters 	must relate to the 	"current business" 	of 	the 	carrier.
The 	Supreme 	Court 	found 	that 	a 	letter 	from an uncertified union
to 	employees was 	not the university's business. 	The content of
Deglow's 	letter 	is 	similar 	enough to 	those 	in Regents 	to 	conclude
- -
that 	the 	information 	contained 	therein 	could not 	be 	described 	as
the District's 	current business. 	As 	stated by the 	court 	in
Regents;
It 	strains 	the 	statutory 	language 	to 	contend
that the phrase 	"current business" 	includes
such 	activity.
(Id. 	at p. 	672.)
Deglow 	further asserts 	that 	the 	District's 	actions
interfered with 	her protected 	rights 	under 	EERA 	section
3543.5(a). 	As previously stated, 	there is no right of access 	for
individual 	employees 	to use the 	internal mail 	system of 	an
6

employer.7 Furthermore, 	there 	is 	no right 	for an employee to
send unstamped 	letters 	in contravention of 	the 	Private 	Express
Statutes. 	Therefore, 	Deglow's 	claim of the District's
interference with 	"her right 	to 	communicate with 	other
instructors" 	cannot be 	supported by the 	District's 	actions 	of
inspecting 	and 	then refusing 	to 	carry what 	it 	regarded 	as
personal mail.
Likewise, 	Deglow has put 	forth no 	facts to 	support the
charge 	that 	the 	District's 	conduct 	involved here 	violates 	EERA
section 3543.5 (d). 	She gives no indication as to when or in what
manner the 	District's 	adherence 	to 	the postal 	regulations
translated 	into 	giving 	aid 	to 	the 	recognized bargaining
organization representing her unit. 	There 	are 	no allegations
that the District's 	conduct tended to 	influence 	employees' 	free
choice 	in organizational 	matters 	or provided 	stimulus 	in one
direction or another to 	employee 	organizations. 	(See 	Santa
Monica Community College District 	(1979) 	PERB Decision No. 	103,
affd. 	112 Cal.App.3d 	684.)
The unfair practice 	charge 	in Case No. 	S-CE-1298 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Shank and Cunningham 	join 	in this 	decision.
7See fn. 	4.
7