San Ramon Valley Unified School District (PERB 0254E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED PUBLIC EMPLOYEES, LOCAL 390,
SEIU, AFL-CIO,
Charging 	Party,
v.
SAN 	RAMON VALLEY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	SF-CE-324
PERB Decision No. 	254
October 	29, 	1982
Appearances: 	Diana K. 	Smith, 	Attorney 	(Breon, Galgani 	&
Godino) 	for 	San Ramon Unified 	School District; 	Stewart Weinberg
(Van Bourg, 	Allen, Weinberg 	& Roger) 	for United Public
Employees Local 390, 	SEIU, AFL-CIO.
Before Tovar, 	Jaeger 	and Morgenstern, Members.
DECISION
JAEGER, Member: 	This 	case 	is 	before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed 	by 	the
San 	Ramon Valley Unified 	School District 	(District) 	to 	the
attached 	proposed 	decision 	finding 	that 	it 	violated 	subsections
3543.5(a) 	and 	(b) 	of 	the Educational Employment Relations Act
(EERA or A c t ) 1 by refusing 	to distribute 	copies 	of 	the
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540, 	et
seq.. 	All 	references 	are 	to 	the Government Code 	unless
otherwise 	indicated. 	Section 	3543.5 provides:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
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Union's2 newspaper 	through 	the 	district 	mail 	system.
The 	Board 	has 	reviewed 	the 	hearing 	officer's 	findings 	of
fact, 	and 	finding 	them free 	from prejudicial 	error, 	adopts 	them
as 	the 	findings 	of 	the Board 	itself. 	We 	affirm 	the 	hearing
officer's 	conclusions 	of 	law 	consistent 	with 	the 	discussion
below.
DISCUSSION
In 	its 	exceptions, 	the District 	raises 	substantially the
same 	arguments 	on 	appeal which 	it 	raised 	before 	the 	hearing
officer. 	Of 	those exceptions, 	all but one were fully
considered 	in 	the 	proposed 	decision, 	and 	we 	affirm 	those
findings. 	The only 	exception 	raised on 	appeal 	which was 	not
dealt with 	by 	the 	hearing officer 	concerns 	the 	District's
contention 	that 	Education 	Code 	section 	70543 required 	it 	to
deny 	the Union 	access 	to 	its 	internal mail 	system.
on employees, 	to discriminate or 	threaten 	to
discriminate against 	employees, 	or 	otherwise
to interfere with, 	restrain, or coerce
employee 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	this 	chapter.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
2United Public Employees, 	Local 390, 	SEIU, AFL-CIO 	(Union
or SEIU, Local 390) .
3Education 	Code 	section 	7054 	provides:
Except 	as provided 	in Sections 	7056, 	35174
and 	72632, 	no school district or 	community
college district funds, services, supplies,
or 	equipment 	shall 	be 	used 	for 	the 	purpose
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The District 	argues 	that 	distribution of 	the October 	1978
issue 	of 	its 	newspaper 	featuring 	the 	headline, 	"Vote No on
Proposition 	6,"4 would 	have 	constituted 	the 	use 	of 	District
" . . . 	funds, services, supplies or equipment 	. 	. 	. 	for the
purpose of 	urging 	the passage 	or 	defeat 	of 	[a] 	school measure
of 	the District," 	contrary 	to Education Code 	section 	7054.
In 	Richmond 	Unified 	School 	District/Simi 	Valley 	Unified
School District 	(8/1/79) 	PERB Decision No. 	99, 	the Board 	found
that 	subsection 	3543.1(b)5 grants 	organizations 	the 	right 	to
use 	employer mail 	facilities, 	subject 	to 	reasonable 	regulation,
and 	that 	interference 	with 	this 	right 	constitutes 	violations 	of
subsections 	3543.5(a) 	and 	(b). 	See also Long Beach Unified
School District 	(5/28/80) 	PERB Decision No. 	130; 	San Ramon
Valley Unified School District 	(8/9/82) 	PERB Decision No. 	230.
of 	urging 	the passage 	or 	defeat 	of 	any
school measure of 	the district, 	including,
but 	not 	limited 	to, 	the 	candidacy of 	any
person 	for 	election 	to 	the 	governing 	board
of 	the district.
4Proposition 	6 was 	a 	statewide 	ballot measure 	regulating
the 	employment 	of 	homosexuals 	in 	the 	public 	schools.
5Subsection 3543.1(b) 	provides:
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.
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We 	find 	Education Code 	section 	7054 	did 	not 	require 	the
District 	to 	refuse 	to distribute 	the October 	1978 	issue of
United Action, 	since 	the 	article 	in 	question did 	not 	concern 	a
"school measure of 	the 	district." 	Although 	the 	term 	"school
measure of 	the 	district" 	is 	not 	defined 	in Education Code
sections 	7050-7057, 	it 	is defined 	in Education Code 	section
351746, which 	is 	incorporated 	by 	reference 	in section 	7054.
6Education Code 	section 	35174 	states 	in full:
The 	governing 	board 	of 	any 	school 	district
or 	any member 	of 	the 	governing 	board 	of 	a
school 	district may 	prepare 	or 	disseminate
information or 	may make public or 	private
appearances 	or 	statements 	for 	the 	purpose 	of
urging 	the 	passage 	or 	defeat 	of 	any school
measure of 	the 	district. 	As 	used 	in 	the
section, 	"school measure" 	includes any
proposition for 	the 	issuance 	of 	bonds 	of 	the
school district, 	an 	increase 	in the maximum
tax rate of 	the school district, 	the
acceptance, expenditure, and repayment of
state funds 	by 	the 	school 	district 	to 	enable
the 	school 	district 	to construct 	buildings
and other 	facilities, 	or 	the 	candidacy of
any person 	for 	election 	to 	the 	governing
board of 	the school 	district. 	Nothing 	in
this code 	shall 	be 	construed 	as 	prohibiting
any 	administrative 	officer 	of 	a 	school
district 	from 	appearing 	at 	any 	time 	before 	a
citizens 	group, 	which requests 	his
appearance, 	to discuss 	the 	reasons 	why the
governing 	board 	of 	the 	school 	district
called 	an 	election 	to 	submit 	to 	the 	voters
of 	the 	district a 	proposition 	for 	the
issuance 	of 	bonds 	or 	for 	an 	increase 	in 	the
maximum 	tax 	rate 	of 	the 	district 	and 	to
answer 	questions 	put 	to 	him 	by 	any 	taxpayer
concerning 	the 	cost 	of 	such proposals.
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Education Code 	section 	35174 	defines 	"school measure 	of 	the
district" as:
. 	. 	. 	any proposition for 	the 	issuance of
bonds of 	the school district, 	an 	increase 	in
the maximum tax 	rate 	of 	the 	school 	district,
the acceptance, expenditure, 	and repayment
of 	state 	funds 	by 	the 	school district 	to
enable 	the 	school 	district 	to 	construct
buildings and other 	facilities, 	or 	the
candidacy of 	any person 	for 	election 	to 	the
governing 	board 	of 	the 	school 	district.
Since 	Proposition 	6 was 	a 	statewide 	ballot measure 	and 	not
a 	"school measure of 	the 	district," 	Education Code 	section 	7054
did 	not 	preclude 	the District 	from distributing 	the October
1978 	issue of United Action. 	Consequently, 	the District's
refusal 	to 	distribute 	the Union 	newspaper 	denied 	SEIU Local 	390
access 	and 	organizational 	rights 	guaranteed 	to 	it 	by
subsections 	3543.1 (a)7 and 	(b) 	of 	the Act, 	in violation of
subsection 3543.5(b). 	In addition, 	it is found that the
7Subsection 3543.1(a) 	provides:
(a) 	Employee organizations 	shall 	have 	the
right 	to represent 	their members 	in their
employment 	relations 	with 	public 	school
employers, 	except that once 	an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	Section 	3544.1
or 	3544.7, 	respectively, 	only that employee
organization may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer. 	Employee organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join 	and may make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from 	membership.
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District's 	conduct 	interfered 	with 	the 	right 	of 	employees 	to
participate 	in 	employee 	organization 	activities 	as 	guaranteed
by 	section 35438, and 	therefore 	violated 	subsection
3543.5(a). 	Richmond, supra.
8Section 	3543 	provides:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation on 	all matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also have 	the 	right 	to
refuse 	to 	join or 	participate 	in 	the
activities 	of 	employee organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the public school 	employer, 	except 	that
once 	the 	employees 	in an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 	3544.1 	or 	certified 	pursuant 	to
Section 3544.7, 	no employee 	in 	that 	unit may
meet 	and 	negotiate 	with 	the 	public 	school
employer.
Any 	employee may 	at 	any 	time 	present
grievances 	to his 	employer, 	and 	have 	such
grievances 	adjusted, 	without 	the
intervention of 	the 	exclusive
representative, 	as 	long as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
Sections 3548.5, 3548.6, 3548.7, and 3548.8
and 	the adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a written 	agreement 	then 	in
effect; 	provided 	that 	the 	public 	school
employer 	shall not 	agree 	to a 	resolution of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity 	to 	file 	a
response.
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In 	so 	finding, 	it 	is 	unnecessary 	for 	us 	to 	determine
whether 	the 	access 	provisions 	of 	subsection 	3543.1(b) 	of 	the
Act 	would 	be 	affected 	by 	Education Code 	section 	7054 	if 	a
communication 	did 	concern 	a 	"school 	measure 	of 	the 	district"
within 	the 	meaning 	of 	the 	Education Code. 	Moreover, 	we 	note
that 	we 	are 	neither 	statutorily 	nor constitutionally permitted
to 	pass 	on 	the 	constitutionality 	of 	Education Code
provisions.9
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	it 	is 	found 	that 	the
San 	Ramon 	Valley 	Unified 	School 	District 	violated 	Government
Code 	section 	3543.5(a) 	and 	(b) 	by 	denying 	SEIU, 	Local 	390
access 	to 	the District's 	internal 	mail 	system. 	Therefore, 	it
is 	hereby ORDERED 	that 	the 	District, 	its 	governing 	board, 	and
its 	representatives 	shall:
1. 	CEASE AND 	DESIST 	FROM:
(a) 	Unreasonably 	denying 	SEIU, 	Local 	390 	access 	to
its 	internal 	mail 	system 	for 	the 	purpose 	of 	communicating 	with
employees 	in 	violation 	of Government Code 	section 	3543.5(b);
(b) 	Interfering with 	employees' 	right 	to participate
in 	employee 	organization 	affairs 	and 	keeping 	them 	from
9 California Constitution, 	Article 	III, 	Section 	3.5.
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receiving 	communications 	from 	such 	organization 	in 	violation 	of
Government Code 	section 	3543.5(a).
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT.
(a) 	Within 	five 	(5) 	workdays 	after 	service of 	this
decision, 	prepare 	and post 	copies 	of 	the 	Notice 	to Employees
attached 	as 	an 	appendix 	hereto, 	for 	at least 	thirty 	(3 0)
workdays 	at 	its 	headquarters 	offices 	and 	in 	conspicuous 	places
at 	the 	locations 	where 	notices 	to 	employees 	are 	customarily
posted. 	It must 	not 	be 	reduced 	in 	size 	and 	reasonable 	steps
should 	be 	taken 	to 	see 	that 	it 	is 	not 	defaced, 	altered or
covered 	by 	any material.
(b) 	Within 	twenty 	(20) 	workdays 	from 	service of 	the
final 	decision 	herein, 	give 	written 	notification 	to 	the
San 	Francisco 	regional 	director 	of 	the 	Public 	Employment
Relations Board 	of 	the 	actions 	taken 	to 	comply with 	this
Order. 	Continue 	to 	report 	in writing 	to 	the 	regional 	director
thereafter 	as 	directed. 	All 	reports 	to 	the 	regional 	director
shall 	be 	concurrently served 	on 	the 	charging party 	herein.
Members 	Tovar 	and Morgenstern 	concurred.
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APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY 	THE 	ORDER 	OF
THE 	PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	SF-CE-324,
United 	Public Employees Local 	390, 	SEIU, 	AFL-CIO v. 	San Ramon
Valley Unified 	School District, 	in which 	all parties 	had 	the
right 	to 	participate, 	it 	has 	been 	found 	that 	the San Ramon
Valley 	Unified 	School 	District 	has 	violated 	subsections
3543.5(a) 	and 	(b) 	of 	the Educational Employment Relations Act
by 	refusing 	to 	distribute 	copies 	of 	the 	October 	1978 	issue 	of
the Union's 	newspaper, 	United Action, 	through 	the District mail
service.
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) 	Unreasonably 	denying 	employee 	organizations
access 	to our 	internal mail 	system 	for 	the 	purpose 	of
communicating 	with 	employees, 	in 	violation of Government Code
section 3543.5 (b);
(b) 	Interfering with 	employees' 	right 	to participate
in 	employee 	organization 	affairs 	and 	keeping 	them 	from
receiving 	communications 	from 	that 	organization, 	in 	violation
of Government Code 	section 	3543.5(a).
Dated: 	SAN RAMON VALLEY UNIFIED SCHOOL 	DISTRICT
BY. Authorized 	Agent
THIS 	IS 	AN 	OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR AT 	LEAST
THIRTY 	(30) 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST NOT BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
99

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED PUBLIC 	EMPLOYEES 	LOCAL 	390,
SEIU, AFL-CIO,
Charging 	Party,
v.
SAN 	RAMON 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-324
PROPOSED 	DECISION
(4/13/81)
Appearances: 	Martha Buell Scott, 	Attorney 	(Breon, 	Galgani 	&
Godino) 	for 	San 	Ramon Unified School District; 	Stewart 	Weinberg
(Van Bourg, 	Allen, Weinberg 	& Roger) 	for United 	Public
Employees Local 390, SEIU, AFL-CIO.
Before: 	James W. Tamm, 	Hearing Officer.
PROCEDURAL 	HISTORY AND 	FACTS
This 	charge was 	filed on October 	26, 	1978 	by 	the United
Public Employees 	Local 	390, 	SEIU, 	AFL-CIO 	(hereafter 	Local 	390
or 	Union) 	after 	District Superintendent Allen J. 	Petersdorf
refused 	Local 	390 	permission 	to distribute 	a 	union 	newsletter
through 	the 	intra-district mail. 	The 	charge 	alleges 	violations
of sections 	3543.1 (a) 	and 	(b) 	and 	3543.5 (a) 	and 	(b) 	of the
Educational 	Employment 	Relations Act 	(hereafter 	EERA or
Act).1 A hearing 	was 	held, 	briefs 	filed, 	and 	the case
submitted 	to 	the 	hearing 	officer 	for 	decision 	on 	February 	6,
1981.
1All 	statutory 	references 	are 	to 	the 	California
Government Code 	unless 	otherwise 	specified.
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On March 	18, 	1977 	the 	charging 	party was 	certified 	as 	the
exclusive 	representative 	of 	the 	bargaining 	unit 	consisting 	of
operations 	and 	support 	services 	employees 	of 	the 	San 	Ramon
Unified 	School District.2 Local 	390 	publishes 	a 	newspaper
every 	month 	which 	is 	distributed 	to 	their 	members 	and 	employees
whom 	they 	represent within 	the 	District. 	Between 	the 	date 	of
certification 	and 	the 	date 	of 	the 	charge 	the 	Union 	had
distributed 	approximately 	four 	editions 	of 	its 	newspaper,
United Action 	to 	employees 	within 	the 	District. 	On 	each
occasion 	Local 	390 	distributed 	approximately 	150 	copies 	of 	the
newspaper 	to 	the 	160 	bargaining 	unit members 	through 	the
District's 	internal mail distribution 	system. 	At 	the 	school
sites 	the mail 	is placed 	in 	various mailboxes 	where 	employees
pick 	up 	their 	mail. 	Local 	390's 	newspaper 	contains 	articles
and 	information 	which 	the 	Union 	wishes 	to 	communicate 	to 	its
bargaining 	unit members.
The 	District 	has 	a policy 	for 	allowing 	the 	use 	of 	District
mail 	facilities 	which 	requires 	a 	copy of 	the 	document 	to 	be
given 	to 	the 	superintendent 	for 	approval prior 	to distribution
through 	the 	mail 	system.3
2At 	the 	hearing 	the 	parties 	stipulated 	that 	certification
was 	issued 	in 	"approximately February 	1977." 	A review of 	the
PERB Regional Office 	records 	indicates 	it 	was 	actually 	issued
March 18, 1977.
3 C o m m u n i c a t i o n s , 	Meetings and 	Representatives.
Organizations 	may 	use 	the 	District 	mail
2

The 	District 	also 	has 	the 	following 	policy 	regarding
political activities:
Political Activities. 	The 	Board of
Education 	recognizes 	and 	encourages 	the
democratic right of all employees, 	as
citizens, 	to participate 	in political
activities 	which 	are 	in accordance 	with
Federal 	and 	State 	constitutions 	and
statutes. 	These rights, however, do not
extend 	to partisan campaigning, 	distribution
of 	literature 	or 	solicitation 	in any other
facilities 	for 	announcements, 	but a copy of
all 	such 	communications 	shall 	be given 	to
the 	Superintendent 	prior 	to delivery 	for
approval, 	and 	a copy 	shall 	be given 	to the
building 	principal 	in 	advance 	of general
distribution.
Any 	communications 	pasted 	on 	a 	District
bulletin 	board, 	or 	sent 	through 	school means
of distribution, or placed 	in employee
boxes, 	shall give 	the name of 	the
organization 	sending 	the 	communication 	and
the 	name 	of 	the 	responsible 	officer 	of 	such
organization, 	and 	shall be dated.
School 	facilities may 	be 	used 	for
organization meetings 	if 	there 	is 	no
conflict 	with 	other 	official 	school 	use 	and
upon proper 	notification 	and 	approval.
Representatives 	of 	organizations 	shall 	not
contact 	employees 	during 	the 	normal work day
in 	which 	they 	are performing 	their 	duties.
Official 	representatives 	of 	employee
organizations 	shall 	report 	to 	the 	school
office 	before 	visiting 	an 	employee 	on 	the
premises of 	the 	school or 	District 	buildings.
Policy adopted: 	July 14, 	1974
Policy revised: 	November 	24, 	1975
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manner 	on 	school property or 	during 	hours of
employment. 	Such 	actions 	are 	considered 	to
be 	in violation of 	the 	professional
standards 	and 	district 	policies 	which must
be 	adhered 	to 	by 	school personnel 	and 	will
constitute 	cause 	for 	appropriate 	action 	by
the 	Board 	of 	Education.
On Thursday, 	October 	19, 	1978 copies of 	the October 	1978
issue 	of 	United 	Action 	were 	delivered 	to 	the 	District 	office
for 	distribution 	through 	the 	intra-District 	mail 	system.
Sufficient 	copies 	were 	left 	so 	that 	each 	member 	of 	the
bargaining 	unit 	would 	receive 	a copy of 	the 	newspaper. 	The
front 	page 	of 	that 	issue 	prominently displayed 	a 	headline 	which
read 	"Vote 	No on Proposition 	6". 	Proposition 	6, 	also 	known 	as
the Briggs 	Initiative, 	was 	a 	statewide 	ballot proposition 	which
dealt 	with 	the 	employment 	conditions 	of 	certain 	school
employees. 	The 	California 	voter 	pamphlet 	for 	the 	November 	7,
1978 	general election described 	the 	initiative 	as 	follows:
School Employees. 	Homosexuality. 	Initiative
Statute. 	Provides 	for 	filing 	charges
against school 	teachers, 	teachers aides,
school administrator 	or 	counselors 	for
advocating, soliciting, imposing,
encouraging 	or 	promoting 	private 	or 	public
sexual acts defined 	in 	section 286 (a) 	and
288 (a) 	of the Penal Code 	between persons of
the 	same 	sex 	in a manner 	likely 	to come 	to
the 	attention of other 	employees 	or
students; 	or publicly or indiscreetly
engaging 	in 	said 	acts. 	Prohibits hiring 	and
requires dismissal of 	such persons 	if 	school
board 	determines 	them 	unfit 	for 	service
after 	considering 	enumerated 	guidelines. 	In
dismissal cases only, 	provides 	for 	two-stage
hearings, written findings, judicial
review. 	Financial 	impact: 	Unknown 	but
potentially 	substantial 	cost 	to 	state,
A	4

counties 	and 	school 	districts 	depending 	on
number 	of 	cases 	which 	receive 	an
administrative 	hearing.
On or 	about October 	19, 	1978, 	Superintendent Petersdorf
received 	a 	copy of 	the 	October 	issue 	of 	United Action. 	The
superintendent 	saw 	the 	"Vote No 	On 	Proposition 	6" 	headline 	and
felt 	the 	use 	of 	the District's mail 	system 	to distribute 	the
article 	would 	violate 	the 	District's 	policy on political
activities. 	Petersdorf did 	not 	read 	the 	article 	itself 	nor 	any
other 	article contained 	in the 	issue, 	but made 	the
determination 	solely on 	the 	basis 	of 	the 	"Proposition 	6"
headline.
Petersdorf 	notified 	Katherine 	Haymes, 	the 	business 	agent
for 	Local 	390, 	that although he was 	in personal agreement with
the position 	taken 	by 	the 	publication 	he 	could 	not 	authorize
distribution 	of 	the 	issue 	through 	the 	intra-District 	mail
because 	it 	advocated 	a 	"no" 	vote 	on Proposition 	6.
Haymes objected, 	arguing 	that 	the 	Union had 	a 	legal 	right
to communicate 	with 	its 	members 	through 	the 	District's mail
system 	and 	that 	the District 	had 	no 	right 	to 	censure
communications 	between 	the 	Union 	and 	its 	members.
In a 	letter 	dated 	November 	1, 	1978 	Petersdorf 	informed
Haymes 	that 	she 	and 	her 	organization were 	free 	to distribute
the 	publication 	through 	alternative 	means 	such 	as 	delivery 	to
the 	school 	sites 	by their 	own methods.
Haymes 	distributed 	approximately 	75 	copies 	of 	United Action
55

by 	hand-delivering 	them 	to District 	employees 	represented 	by
Local 	390 	in 	the days preceding 	the November 	7, 	1978 	general
election. 	Haymes 	reached 	approximately half 	of 	the 	bargaining
unit 	through 	personal deliveries.
ISSUE
Whether 	the 	respondent 	violated 	sections 	3543.5(a) 	and 	(b)
by 	refusing 	to allow distribution, 	through 	the District's
internal mail 	system, 	of 	the October 	1978 	issue of United
Action, 	thereby denying 	Local 	390 	the 	right 	to 	represent 	its
members under 	sections 	3543.l(a) 	and 	(b).
DISCUSSION AND 	CONCLUSIONS 	OF 	LAW
Section 3543.1 (b) 	provides that:
(b) 	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.
In Richmond Unified School District 	(8/1/79) 	PERB Decision
No. 	99, 	the PERB held 	that 	at a minimum the Legislature
intended 	to 	include 	the 	use 	of 	internal 	school mail 	systems 	as
one 	of 	the 	employee organization's 	access 	rights 	authorized 	by
section 	3543.1(b) 	of 	the 	EERA. 	The Board 	also narrowly
interpreted 	the 	right 	of 	a District 	to 	regulate 	the 	use 	of 	such
systems:
66

On 	the 	basis 	of 	our 	understanding 	of 	the
statutory purposes 	of 	EERA 	in 	conjunction
with 	our 	review of 	analogous 	principles 	of
labor 	and 	constitutional 	law we 	conclude
that 	school 	employer 	regulation 	under
section 	3543.1(b) 	should 	be 	narrowly drawn
to cover 	the 	time, 	place 	and manner 	of 	the
activity without 	impinging 	on 	content 	unless
it presents 	a 	substantial 	threat 	to peaceful
school operations. 	Richmond, 	supra, 	at p.
19.
Given 	that 	interpretation of 	the EERA, 	the policy of 	the
District 	cannot 	stand 	and 	limitations 	placed 	on 	Local 	390 	by
the 	District 	is 	a violation of 	the EERA.
Since 	section 	3543.l(b) 	is 	designed 	to protect an 	employee
organization's 	ability 	to communicate 	with 	employees, 	the
burden 	is 	upon 	the 	district 	to 	show 	that 	any 	impingement 	of
that 	right 	is 	necessary. 	In 	this 	case 	the 	District 	failed 	to
show, 	nor 	is 	it 	likely 	that 	it could 	show, 	that dissemination
of 	the 	"vote No on Proposition 	6" 	article posed 	any danger 	to
peaceful 	school 	operations 	as 	required 	by Richmond. 	The
District 	therefore 	improperly 	sought 	to 	regulate 	beyond 	its
lawful 	degree 	of 	authority.
The policy 	is 	also 	unlawful 	because 	it 	is 	vague 	and 	carried
out 	subject 	to 	the 	unfettered 	discretion of 	the 	superintendent.
The 	superintendent 	characterized 	his 	review policy 	as 	follows:
My 	general objections 	to 	any 	article 	that
would go out would 	be 	if 	it 	advocates a yes
or 	no 	vote 	and 	tries 	to persuade 	the 	voter
as 	to how to vote. 	If 	it's an article 	that
is 	informative 	and 	reports 	what was 	[sic]
transpired 	as 	far 	as 	union 	activities 	or 	any
other 	group, 	I would 	not have an objection
to 	that 	in my 	interpretation 	of 	the 	policy.
77

It 	appears 	that 	the policy was 	not consistent. 	The
superintendent 	testified 	he 	would 	have 	allowed 	an 	article
entitled 	"The 	Union's 	Union" 	which 	reported 	political
endorsement 	of 	the 	political education 	arm of 	the 	Alameda 	and
Contra Costa Central Labor 	Council. 	He also 	testified,
however, 	that 	another 	article 	entitled 	"Ussery 	for 	BART Board"
reporting 	another 	political 	endorsement 	by 	the 	Central 	Labor
Council 	appeared 	to 	be 	advocacy 	of 	a partisan political 	issue.
Even 	assuming 	arguendo 	this 	policy 	had 	been 	applied 	on 	a
consistent 	basis, 	it would appear 	to allow an article,
reporting 	informationally, 	that 	Local 	390 officially endorsed 	a
"no" 	vote 	on Proposition 	6, 	and 	could 	in 	fact 	list 	all 	of 	the
reasons why 	it 	adopted 	that position, 	while 	at 	the 	same 	time
would 	prohibit 	an 	article 	which 	in 	and 	of 	itself 	overtly 	urged
a 	"no" 	vote 	on Proposition 	6 citing 	the 	identical 	reasons. 	It
is 	doubtful 	that 	an article 	reporting 	an 	endorsement 	by Local
390 would 	be 	included 	in 	the 	official publication 	for 	Local 	390
for 	any other 	reason 	than 	to persuade 	its 	readers 	to vote 	in a
certain manner. 	Therefore, 	even 	under 	a 	consistent 	application
of 	the 	policy 	the 	dividing 	line 	between what 	material 	is
political 	and 	what 	material 	is merely 	reporting 	information 	is
extremely 	vague.
Furthermore, 	in light of 	the 	fact 	that 	the 	superintendent
admittedly did 	not 	even 	read 	the 	article, 	he 	had 	no way of
knowing 	for 	sure whether 	the 	article was 	urging a 	"no" 	vote or
8

merely reporting 	someone else 	urging 	a 	"no" vote, 	which
presumably 	would 	have 	been 	allowed 	under 	the 	superintendent's
interpretation of 	the 	policy.
As 	a 	final note 	it 	appears 	that 	the 	District has 	allowed
many 	exceptions 	to 	its 	policy of 	prohibiting 	partisan
campaigning, distribution of literature, or 	solicitation 	in any
manner 	on 	school property. 	Superintendent 	Petersdorf's
testimony 	that 	community groups, 	which 	could 	include 	groups of
school 	employees, 	are allowed 	to use 	school 	facilities 	for
partisan 	political 	purposes 	under 	the 	Civic 	Center 	Act,4
exemplifies 	this 	inconsistency.
Moreover, 	the 	superintendent 	did give 	permission 	to Haymes
or 	members 	of 	Local 	390 	to distribute 	the 	newspaper 	themselves
on 	school property, 	also a clear 	violation of 	the 	policy.
The District 	asserts 	as 	a defense a 	series 	of 	cases 	and
Attorney General opinions, 	the most 	authoritative of which 	is
Stanson v. 	Mott 	(1976) 	17 Cal.3d 	206. 	Stanson held 	that:
In 	the 	absence 	of 	clear 	and 	explicit
legislative 	authorization 	a 	public 	agency
may 	not 	expend 	public 	funds 	to promote 	a
partisan 	position 	in 	an 	election 	campaign
. . . . 	17 Cal.3d 	at 	210.
4see 	California Education Code 	section 	40048 	et 	seq.
which 	provides 	that citizens 	and 	organizations 	may 	use 	school
buildings and 	grounds 	to meet 	and 	discuss 	subjects which 	in
their 	judgment 	appertain 	to 	the 	educational, 	political,
economic, 	artistic and moral 	interests of the citizens of 	the
communities 	in which 	they 	reside.
9

The 	cases 	cited 	deal with 	agencies which 	sought 	to expend
funds 	in partisan political efforts, 	and 	not with 	agencies
under 	an affirmative 	duty 	to allow 	the 	use 	of 	facilities 	as 	in
the present 	case. 	Absent 	a 	finding 	that 	the 	use of 	the
District's 	internal mail 	system 	by 	employee 	organizations
wishing 	to 	communicate 	with 	their 	members 	was 	intended 	by 	the
Legislature, 	the 	result of 	this case might 	be different.
However, 	in 	light of 	the PERB 	finding 	in Richmond 	that 	such 	use
of 	the mail system 	is a 	guaranteed 	right, 	this case can 	be
distinguished 	from 	the Stanson 	line 	of 	cases.
For 	the 	reasons already 	set 	forth, 	it 	is 	found 	that 	by
denying 	the 	employee 	organization 	a 	right 	to 	represent 	its
members pursuant 	to section 	3543.1(a) 	and, 	more specifically,
denying 	the 	charging 	party 	the 	right 	to 	use 	"other 	means 	of
communications" provided 	in section 3543.l(b), 	the District has
violated 	section 3543.5(b) 	of the Act. 	In addition, 	some harm
occurred 	to 	the 	employees 	statutory 	right 	under 	section 	3543 	to
participate 	in 	employee 	organization 	affairs 	by 	receiving
communications 	from Local 390. 	Accordingly, 	as 	in Richmond,
supra, at pp. 	29-30, a violation of section 3543.5 (a) 	is also
found.
REMEDY
Section 	3541.5 (c) 	gives 	the PERB broad 	powers 	to remedy
unfair 	practices, 	specifically 	including 	the 	power 	to 	issue
cease 	and 	desist 	orders.
10

Since 	it 	has 	been 	found 	that 	the District 	unreasonably
denied Local 	390 access 	to 	its 	internal mail 	system, 	it will be
ordered 	to 	cease 	and 	desist 	from denying 	such 	access 	for 	the
purpose of communication with 	employees. 	As 	in Richmond,
supra, 	the 	cease 	and 	desist 	order 	will 	apply 	in 	favor 	of all
employee 	organizations 	as well as 	Local 	390.
It also 	is 	appropriate 	that 	the District 	be 	required 	to
post 	a notice 	incorporating 	the 	terms 	of 	the 	order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
indicating 	that 	it will comply with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such 	a 	notice
will 	provide 	employees 	with 	notice 	that 	the 	District 	has 	acted
in 	an 	unlawful manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from such 	unlawful activity. 	It 	effectuates 	the 	purposes 	of
the EERA that 	employees 	be 	informed 	of 	the 	resolution 	of 	the
controversy and 	will 	announce 	the 	District's 	readiness 	to
comply 	with 	the 	ordered 	remedy. 	See 	Placerville 	Union School
District 	(9/18/78) 	PERB Decision No. 	69. 	In Pandol and Sons v.
ALRB and UFW 	(1979) 	98 Cal.App.3d 580, 	587, 	the California
District 	Court 	of Appeal 	approved 	a posting 	requirement. 	The
U.S. 	Supreme Court 	approved 	a 	similar 	posting 	requirement 	in
NLRB v. Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
-
11

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	it 	is 	found 	that 	the SAN
RAMON 	UNIFIED SCHOOL 	DISTRICT 	violated 	Government 	Code 	section
3543.5(a) 	and 	(b) 	by denying 	employee 	organizations 	access 	to
the District's 	internal mail 	system. 	Therefore, 	it 	is hereby
ordered 	that 	the 	District, 	its 	governing 	board 	and 	its
representatives 	shall:
1. 	CEASE 	AND DESIST 	FROM:
(a) 	Unreasonably denying 	employee 	organizations
access 	to 	its 	internal mail 	system 	for 	the 	purpose 	of
communicating 	with 	employees; 	in 	violation of 	Government 	Code
section 3543.5 (b);
(b) 	Interfering 	with 	employees' 	right 	to participate
in 	employee 	organization 	affairs 	and 	keeping 	them 	from receiving
communications 	from 	such 	organization 	in 	violation 	of 	Government
Code section 3543.5(a).
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT.
(a) 	Within 	five 	(5) 	workdays 	after 	this decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the NOTICE TO
EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
(30) 	workdays 	at 	its 	headquarters 	offices 	and 	in 	conspicuous
places 	at 	the 	location 	where 	notices 	to 	employees 	are
customarily 	posted. 	It must 	not 	be 	reduced 	in 	size 	and
reasonable 	steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not
12

defaced, 	altered or 	covered by 	any material.
(b) 	Within twenty 	(20) 	workdays 	from service of 	the
final decision herein, 	give 	written 	notification 	to 	the San
Francisco 	Regional Director 	of 	the 	Public 	Employment 	Relations
Board, 	of 	the 	actions 	taken 	to comply with 	this Order.
Continue 	to 	report 	in writing 	to 	the 	Regional Director
thereafter 	as directed. 	All 	reports 	to 	the 	Regional Director
shall 	be 	concurrently 	served 	on 	the 	charging 	party herein.
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this Proposed 	Decision and Order 	shall
become 	final on 	May 4, 	1981 	, 	unless a party 	files a 	timely
statement 	of exceptions. 	See 	California Administrative 	Code
title 8, 	part 	III, 	section 	32300. 	Such 	statement of exceptions
and 	supporting 	brief 	must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the 	Board 	at 	the 	headquarters 	office 	of 	the 	Public
Employment 	Relations 	Board 	in Sacramento 	before 	the 	close 	of
business 	(5:00 p.m.) 	on 	May 4, 	1981 	/ 	in order 	to be 	timely
filed. 	See California Administrative Code, 	title 8, 	part 	III,
section 	32135. 	Any 	statement 	of 	exceptions 	and 	supporting
brief must 	be 	served 	concurrently with 	its 	filing 	upon 	each
party 	to 	this proceeding. 	Proof 	of 	service 	shall 	be 	filed with
the Board 	itself. 	See 	California Administrative Code, 	title 	8,
part 	III, 	sections 	32300 and 	32305 as amended.
Dated: 	April 13, 	1981
JAMES W. 	TAMM, 	Hearing Officer
13

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER 	OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice 	Case No. 	SF-CE-324,
United 	Public 	Employees 	Local 	390, 	SEIU, 	AFL-CIO v. 	San 	Ramon
Unified School 	District, 	in 	which 	all 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	District 	violated
Government Code 	section 	3543.5 (a) 	and 	(b).
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) 	Unreasonably denying 	employee 	organizations
access 	to 	its 	internal 	mail 	system 	for 	the 	purpose 	of
communicating 	with 	employees 	in 	violation 	of 	Government 	Code
section 3543.5(b);
(b) 	Interfering 	with 	employees' 	right 	to participate
in 	employee 	organization 	affairs 	and 	keeping 	them 	from receiving
communications 	from 	such 	organization 	in 	violation 	of 	Government
Code section 3543.5(a).
Dated: 	SAN 	RAMON 	UNIFIED SCHOOL 	DISTRICT
By
Authorized 	Agent
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT 	LEAST
THIRTY 	(30) 	WORKDAYS 	FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, 	DEFACED, ALTERED OR COVERED BY ANY MATERIAL.
14