University of California at Berkeley (Wilson) * * * SUPERSEDED first by Decision 183a-H, then by Decision 420-H, and finally by the U.S. Supreme Court, 485 U.S. 589 (PERB 0183H)

SUPERCEDED first by Decision 183a-H, then by Decision 420-H, and
finally by the U.S. Supreme Court, 485 U.S. 589
STATE	
OF
	CALIFORNIA
DECISION	
OF
	THE
PUBLIC
	EMPLOYMENT	
RELATIONS	
BOARD
WILLIAM
H. 	WILSON,
Charging
	Party,
V •
UNIVERSITY	
OF	
CALIFORNIA
AT
	BERKELEY,
Respondent.
)
}
)
)
)
)
)
)
)
_____________________ )
Case
	No.	
SF-CE-4-H
PERB	
Decision
	No.183-H
November
	25,
	1981
Appearances:	
Andrew 	Thomas
	Sinclair,
	Attorney
	(Sinclair	
&
Clancy)
	for
	William
	H.
	Wilson; 	Susan
	M.
	Thomas,
	Attorney 	for
Regents
	of 	the 	University 	of
	California
	at
	Berkeley.
Before
	Gluck,
	Chairperson; 	Jaeger
	and 	Moore,
	Members.
DECISION
The
	instant
	case
	comes
	before 	the 	Public
	Employment
Relations
	Board
	(hereafter
	Board
	or
	PERB)
	on
	exceptions 	taken
by
	the 	University 	of
	California
	at
	Berkeley
	(hereafter
University) 	to 	the
	proposed
	hearing
	officer's
	decision. 	In
that 	decision,
	the 	hearing
	officer
	determined
	that
William
	H.
	Wilson, 	as
	an
	individual
	and 	on
	behalf 	of 	the
American
	Federation 	of
	State,
	County 	and
	Municipal 	Employees,
Local
	371
	(hereafter
	AFSCME),
	sustained
	its
	charge
	that
	the
University 	violated 	subsections 	357l(a)
	and 	(b)
	of 	the 	Higher
Education
	Employer-Employee
	Relations
	Act
	(hereafter
	HEERA
	or
Act) 	and
	dismissed
	AFSCME 1 s
	allegation
	with 	regard 	to

subsection
	357l(d).l	
AFSCME
	did 	not
	submit
	exceptions
	to
	the
hearing
	officer's
	dismissal
	of
	the
	allegation
	regarding
subsection
	357l(d)
	of 	the
	Act,
	and
	we
	therefore
	make
	no
	ruling
on
	this
	charge.
The
	Board
	has 	reviewed
	the 	record
	and
	concludes
	that
	the
hearing
	officer's
	procedural
	history
	and
	findings
	of
	fact
	as
set
	forth
	in
	the
	proposed
	decision, 	attached 	hereto,
	are
	free
1
The
	HEERA
	is
	codified
	at
	Government
	Code
	section
	3560
et.
	seq. 	All
	statutory
	references 	hereafter
	are
	to
	the
Government
	Code
	unless 	otherwise
	indicated.
_
	Subsections 	357l{a),
	(b)
	and
	(d)
	provide:
It
	shall
	be
	unlawful 	for 	the 	higher
education
	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.
(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.
2

from
	prejudicial
	error
	and
	are
	adopted
	by
	the
	Board
	itself.2
Further,
	we
	affirm
	the
	hearing
	officer's
	conclusions
	of
	law
	as
modified
	below.
DISCUSSION
In 	accordance 	with 	the 	hearing
	officer's
	determination,
	we
find
	that
	section
	3568
	of
	HEERA3	
entitles
	AFSCME
	to
	use
	of
the
	University's 	internal
	mail 	system.
	The
	University
	may
	not
insist
	that 	organizational 	material
	be
	stamped
	and
	sent
	through
the
	United
	States 	Postal 	Service.
	We
	note
	that
	the
	University
has
	expressed 	concern
	regarding 	the
	fact
	that,
	as
	currently
maintained,
	the
	internal
	mail 	system
	utilizes
	supervisors 	to
distribute
	mail.
	An
	employer 	has
	the
	right
	to
	protect
	itself
against
	potential
	charges
	that
	its
	supervisory 	personnel
	are
engaged
	in
	organizational
	activities
	or 	rendering
	assistance 	to
an 	employee
	organization. 	Further,
	an 	employer
	may,
	as
	a·
2In
	1ts
	exceptions, 	the 	University
	correctly 	identifies
certain
	inaccuracies 	in 	the 	hearing
	officer's 	recitation
	of 	the
facts.
	We
	find,
	however,
	that
	the
	factual
	summary
	is
	free
	from
prejudicial 	error.
3section
	3568
	provides:
Subject 	to 	reasonable
	regulations,
	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, 	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 	act. 
3

matter
	of
	policy,
	require
	its
	supervisory
	employees
	to
	maintain
its
	neutrality
	with
	respect 	to 	organizational
	activity.
	(State
of
	California
	(Department
	of
	Forestry)
	(9/21/81)
	PERB
	Decision
No.
	174-S.)
	We
	conclude
	that
	an 	employer
	is
	permitted 	to
structure
	its
	internal
	mail 	system
	in 	order 	to
	avoid 	conduct
which
	may
	be
	prohibited
	by
	the
	Act.
	Thus,
	while
	we
	do
	not
depart
	from
	our
	ruling
	that
	AFSCME
	is 	entitled
	to
	utilize
	the
University's
	internal
	mail 	system,
	the
	University
	may
	devise,
consistent
	with
	its
	statutory 	obligations,
	an
	alternative
method
	of 	mail
	distribution
	which
	will
	not
	require 	supervisory
employees
	to 	deliver
	the
	organizational 	materials.
ORDER
Based
	upon
	the 	foregoing
	facts,
	conclusions 	of
	law 	and
	the
entire
	record 	in
	this
	case,
	it
	is
	found
	that
	the 	University 	of
California 	at
	Berkeley 	has
	violated 	subsections 	357l(a)
	and
	(b)
of 	the
	Higher
	Education
	Employer-Employee
	Relations
	Act	
by
denying
	the
	American
	Federation	
of	
State,	
County	
and
	Municipal
Employees,
	Local
	371,
	access
	to
	the
	University's 	internal
	mail
system
	at
	the 	Berkeley
	campus.
	It
	is
	hereby
	ORDERED
	that
	the
University
	and
	its
	representatives	
shall:
(1)	
CEASE	
AND
	DESIST 	FROM:
(a) 	Denying 	employee	
organizations 	access 	to
	its
internal	
mail	
system	
for	
the	
purpose
	of 	communicating 	with
employees;
4

(b)
	Interfering
	with
	employees'
	rights
	to
	participate
in
	employee
	organization
	affairs
	by
	receiving
	communications
from
	such
	organizations.
(2)
	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTION
	WHICH
	IS
NECESSARY
	TO
	EFFECTUATE
	THE
	POLICIES
	OF 	THE
	ACT:
(a)
	Within
	five
	(5)
	workdays
	of 	date 	of
	service 	of
	this
decision, 	post 	copies
	of 	the 	Notice,
	as
	set
	forth
	and
	attached
hereto 	in 	the
	Appendix,
	at
	its
	headquarters
	office
	and
	in
	all
locations
	on
	the
	Berkeley
	campus
	where
	notices 	to
	employees
	are
customarily 	placed.
	Such
	posting
	shall
	be
	maintained 	for
	a
period 	of
	thirty
	(30)
	consecutive
	workdays. 	Reasonable
	steps
should
	be
	taken
	to 	insure
	that
	said
	Notices
	are
	not 	reduced 	in
size, 	altered,
	defaced 	or 	covered
	by 	any
	other 	materials;
	and
(b}
	At
	the
	end
	of
	thirty-five
	(35)
	workdays 	from
	date
of
	service
	of
	this
	Decision,
	notify
	the
	San
	Francisco
	regional
director
	of 	the 	Public
	Employment
	Relations
	Board
	in
	writing
	of
the
	action
	the 	University
	has
	taken 	to
	comply
	with
	this
	Order.
It
	is
	further
	ordered
	that
	the 	alleged 	violation
	of
subsection
	357l(d) 	of 	the
	Act
	is
	DISMISSED.
By:
	Barbara
	D.
	Moore,
	Member	
V°John
	W.
	Jaeger,
	Member
ft	
~
Chairper"s~ 
,5

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-4-H
	in
which
	both
	parties 	participated,
	it
	has
	been 	found
	that
	the
University 	of
	California
	at
	Berkeley
	violated
	subsections
357l(a)
	and 	(b)
	of
	the
	Higher
	Education
	Employer-Employee
Relations
	Act
	by
	unreasonably
	denying
	the
	American
	Federation
of	
State,
	County 	and
	Municipal
	Employee,
	Local
	371,
	use	
of	
the
University's 	internal
	mail 	system
	for 	the
	purpose
	of
communicating
	with
	employees 	on
	the 	Berkeley
	campus.
	As 	a
result
	of
	this
	conduct,
	we
	have 	been
	ordered
	to 	post
	this
Notice
	by
	the 	Public
	Employment
	Relations
	Board.
	We
	will:
CEASE
	AND
	DESIST
	FROM:
1.
	Denying 	employee
	organizations
	access
	to 	the
University
	internal
	mail 	system
	for 	the 	purpose	
of
communicating
	with
	employees 	on
	the 	Berkeley
	campus, 	and
2.
	Interfering
	with 	employees'
	rights 	to
	participate
	in
employee
	organization
	affairs
	by
	receiving
	communications 	from
such
	organizations.
Dated:	
UNIVERSITY
	OF	
CALIFORNIA
	AT
	BERKELEY
By:
-=---~--"T"""-=-::----.,...----,:--:-:c------,------:-:-
Au
tho
r 1
zed 	Agent
	of 	the 	Universit
-
y
THIS 	IS
	AN	
OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN	
POSTED 	FOR 	30
CONSECUTIVE
	WORKDAYS 	FROM 	THE 	DATE 	OF 	POSTING	
AND	
MUST 	NOT 	BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED 	BY ANY
	MATERIAL.