University of California at Berkeley (Wilson) * * * REVERSED IN PART by the U.S. Supreme Court (485 U.S. 589) (PERB 0420H)

REVERSED IN PART 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. 	420-H
October 18, 	1984
ON 	REMAND 	FROM THE
COURT OF APPEAL,
FIRST 	APPELLATE
DISTRICT
Appearances: 	Andrew Thomas Sinclair, 	Attorney for William
H. 	Wilson; 	Susan M. 	Thomas, Attorney for 	the Regents of the
University 	of California.
Before Jaeger, 	Morgenstern and Burt, Members.
DECISION
JAEGER, 	Member: 	This case is before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on remand 	from the Court 	of
Appeal, 	First Appellate District, 	in which the Court directed
the Board 	to determine, 	inter alia, 	whether 	the policies of the
University of California at 	Berkeley 	(UC 	or 	University)
regarding 	employee 	organization 	access 	to 	its 	internal mail
system are 	reasonable 	in 	light of all 	the 	surrounding
circumstances, 	including 	federal postal statutes and
regulations.
For 	the reasons 	set forth below, 	we conclude 	that the
University's policies 	are 	not 	reasonable within 	the meaning 	of
section 	3568 	of 	the Higher 	Education Employer-Employee
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Relations Act 	(HEERA or 	Act) 	and all 	the surrounding
circumstances, 	including 	federal postal statutes and
regulations, 	and find that UC violated subsections 3571(a) 	and
(b) 	of 	the Act when 	it withdrew the right of employee
organizations to use its internal mail system.11
PROCEDURAL 	HISTORY
On November 	16, 	1979, William H. 	Wilson, 	as an individual
and on behalf of 	the American Federation of State, 	County, 	and
Municipal Employees, 	Local 371 	(AFSCME or Union) 	filed an
unfair 	practice 	charge against 	the 	University of California 	at
1HEERA 	is 	codified at Government Code 	section 	3560
et 	seq. 	All 	references 	are 	to 	the Government Code unless
otherwise 	indicated.
Section 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.
Section 3571 provides, 	in relevant part:
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
2
l
2

Berkeley 	alleging 	that 	the 	University 	violated HEERA
sections 3568 and 3571(a), 	(b), and (d).
On June 17, 	1980, 	a Public Employment Relations Board
Administrative Law Judge 	(ALJ) 	issued a proposed decision
finding 	that 	the 	University violated HEERA 	subsections 	3571(a)
and (b).
The 	University appealed 	the proposed decision 	to 	the 	Board
itself.
On November 	25, 	1981, 	the Board 	issued PERB Decision
No. 	183-H 	affirming 	the hearing officer's 	proposed decision.
The University appealed PERB Decision No. 	183-H 	to 	the
First District Court of Appeal, 	arguing, 	inter alia, 	that
delivery 	of 	employee 	organization mail 	free 	of charge 	through
the 	University's 	internal mail 	system was 	precluded 	by 	the
federal 	"Private Express Statutes" 	(39 	U.S.C. 	sections 	601-606;
18 U.S.C, 	sections 1693-1699) 	and the rules promulgated
thereunder 	by the 	United 	States Postal 	Service 	(Postal 	Service
or USPS) 	(39 	C.F.R. 	sections 	310 	and 320) 	protecting 	the
federal 	postal monopoly and regulating private delivery of mail.
On February 17, 	1983, 	the Court issued its decision 	(139
Cal.App.3d 1037). 	The Court found that Article III, 	section
employees 	because of 	their 	exercise of 	rights
guaranteed by this 	chapter.
(b) 	Deny to employee organizations 	rights guaranteed
to 	them by 	this 	chapter.
33

3.5 	of 	the California 	Constitution2 precluded PERB 	from
refusing 	to enforce HEERA 	rights 	on 	the ground of 	federal
preemption 	in 	the 	absence 	of an antecedent court 	ruling.
However, 	the 	Court held 	that 	PERB was 	not precluded 	from
determining 	"whether 	the state statute 	. 	. 	. 	and the federal
postal laws and 	regulations can be harmonized." 	(139
Cal.App.3d 	at 1042.) 	Thus, 	the Court 	remanded the case 	to the
Board 	to determine:
. 	. 	. 	whether the University's regulations
denying union access 	to 	the 	internal mail
system are 	reasonable 	in 	light 	of 	all 	the
surrounding 	circumstances, 	including 	federal
postal requirements. 	(139 Cal.App.3d at
1042.)
2Article 	III, 	section 3.5 provides:
An administrative agency, 	including an
administrative 	agency 	created 	by 	the
Constitution or an 	initiative 	statute, 	has
no power:
(a) 	To declare a statute
unenforceable, 	or 	refuse to enforce a
statute, 	on the basis of it being
unconstitutional 	unless 	an 	appellate
court 	has made 	a determination 	that
such 	statute 	is 	unconstitutional;
(b) 	To declare a statute
unconstitutional;
(c) 	To declare a statute
unenforceable, 	or to refuse to enforce
a 	statute on the basis 	that 	federal 	law
or 	federal regulations prohibit 	the
enforcement of 	such 	statute 	unless 	such
statute 	is 	prohibited by 	federal 	law or
federal regulations.
4

In making this determination, 	the Court 	indicated 	that PERB
may:
. 	. 	. 	properly consider circumstances
emphasized 	in 	this writ proceeding but yet
to be evaluated: 	e.g., 	the University's 	use
of 	its mail 	system to disseminate an
employee 	newsletter 	expressing 	management's
views on labor-management 	issues; 	the
University's 	distribution 	of 	literature
through 	the 	internal mail 	system soliciting
charitable 	contributions 	deemed 	official
business 	under 	the auspices 	of 	the
Chancellor; 	the union's access 	to other
means 	of 	communicating 	with 	custodial
employees; 	the burden which would be placed
on 	the 	University's 	internal mail 	system.
(139 Cal.App.3d 	at 1042, 	fn 	6.)
On March 18, 	1983, 	in response to 	the remand order of the
Court of Appeal, 	the Board 	issued PERB Decision No. 	183a-H, 	in
which 	it 	remanded 	the 	record 	to 	the 	Chief Administrative 	Law
Judge 	to conduct a hearing 	"for 	the purpose of 	taking
additional 	evidence 	as 	to 	whether 	the 	University's 	regulations
concerning 	the 	use 	of 	its 	internal mail 	system by employee
organizations 	are 	reasonable 	within 	the meaning 	of 	section 	3568
of 	[HEERA]." 	The Board directed 	the Chief Administrative 	Law
Judge 	to 	solicit 	evidence concerning 	the 	following 	issues:
1. 	To what extent are 	the materials
charging party seeks 	to distribute 	"letters"
within 	the meaning 	of 	the 	federal postal
regulations?
2. 	What compensation, 	if any, does the
University 	receive 	for 	delivery 	of employee
organization 	materials?
5

3. 	What relationship, 	if any, 	exists
between 	the University's 	mail 	system and
United 	States postal 	routes?
4. 	Does 	the University utilize 	its mail
system to disseminate management 	material
pertinent 	to 	employer-employee 	relations?
5. 	Does 	the University permit 	the use of
its mail 	system by charitable 	and 	other
nonemployee 	organizations?
6. 	What burden, 	if any, 	would be placed on
the 	University's mail 	system if 	it were made
available 	to employee 	organizations?
Administrative 	Law Judge 	(ALJ) 	Jim Tamm conducted 	a hearing
to solicit additional evidence, 	and on June 2, 	1983, 	made
factual 	findings 	directly 	responsive 	to 	the questions 	posed 	by
the Board 	in Decision No. 	183a-H.
Both 	the 	University and 	the 	Charging 	Party have 	filed
exceptions 	to some 	of the 	factual 	findings made by 	the ALJ.
FACTS
Both 	the 	original proposed decision 	of 	the hearing 	officer
and 	the 	proposed decision 	issued pursuant 	to 	the 	Board's 	Order
in Decision No. 	183a-H are attached hereto. 	We have reviewed
these 	factual 	findings, 	and 	finding 	them 	free 	from prejudicial
error, 	adopt them as the findings of the Board 	itself.3 w
3The 	University reasserts a motion, 	which was denied by
ALJ 	Tamm, 	to 	exclude all evidence concerning delivery of mail
at Lawrence Livermore National Laboratory 	(LLNL). 	The
University contends 	that, 	since 	the unfair 	practice 	charge 	in
this case concerns 	the University's denial of access 	to the UC
mail 	system at 	the 	Berkeley campus, 	evidence concerning 	other
6
3
6

DISCUSSION
HEERA 	section 	3568 	represents 	a codification 	by 	the
California 	Legislature 	of 	longstanding 	precedent 	under 	the
National Labor 	Relations Act 	(NLRA) 4 granting 	employee
organizations 	the 	right of access 	to an 	employer's property 	for
organizational and representational purposes. 	See Morris, 	The
Developing Labor Law 	(2d Ed. 	1983), Chap. 	6; 	Republic Aviation
Corporation 	(1945) 	324 U.S. 	793 	[16 LRRM 620]; 	Stoddard-Quirk
Mfg. 	Co. 	(1962) 	138 NLRB 615 	[51 LRRM 1110]; Beth Israel
Hospital 	(1978) 	437 U.S. 	483 	[98 LRRM 2727].5
The 	language of section 3568 	is 	virtually 	identical 	to 	that
of subsection 3543.1(b) 	of 	the Educational Employment Relations
. .
campuses 	or 	facilities 	of 	the 	University 	is 	irrelevant. 	We
disagree. 	The Court of Appeal's 	Order 	in this case 	requires
the Board 	to determine 	"whether 	the University's 	regulations
denying union access 	are 	reasonable 	in 	light of all 	the
surrounding circumstances, 	. . . " 	Thus, 	as 	the ALJ noted, 	it
was not 	the 	intention of 	the 	Court of Appeals 	to 	limit 	evidence
to only one UC 	facility but, 	rather, 	to look at the entire
system. 	While 	the 	unfair 	practice 	charge 	in 	this case 	is
limited 	to the Berkeley campus, 	evidence concerning LLNL 	is
probative of 	the overlap of USPS 	and UC mail 	routes 	and helps
paint a picture 	of 	the 	functioning 	of 	the UC 	mail 	system as 	a
whole.
4 29 	U.S.C 	151 	et 	seq.
5However, 	unlike 	the court-created 	access 	rights 	under
the NLRA, 	those 	under HEERA are expressly statutory.
77

Act 	(EERA).6 In 	Richmond Unified 	School Distirct/Simi Valley
Unified School District 	(8/1/79) 	PERB Decision No. 	99, 	the
Board 	analyzed 	the 	statutory 	phrase 	"other 	means 	of
communication" as set forth in EERA subsection 3543.l(b), 	and
concluded 	that 	employee organizations were 	entitled 	to have
access 	to 	internal mail 	systems. 	The Board's decision was
based on 	its view that the means of access 	specified 	in
subsection 3543.1(b) 	were not 	intended by 	the Legislature 	to be
exhaustive, 	a view which 	is consistent with 	interpretations 	of
similar 	statutory 	language 	contained 	in 	the Meyers-Milias-Brown
Act 	(Government Code section 3500 	et seq.). 	Richmond Unified
School District/Simi Valley Unified School District, 	supra; 	45
Ops. 	Atty. 	Gen. 	138. 	We reaffirm this finding, 	and conclude
6The 	EERA 	is codified 	as Government Code 	section 	3540 	et
seq. 	EERA subsection 3543.l(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.
Although 	no parallel 	section governing 	access 	rights 	exists
in the State Employer-Employee Relations Act 	(SEERA),
Government Code section 3512 	et seq., 	this Board, 	in State of
California 	(Dept, 	of Corrections) 	(5/5/80) 	PERB Decision
No. 	127-S, 	determined that such rights could be implied. 	See
also State of California 	(Dept, 	of Transportation) 	(7/7/81)
PERB Decision No. 	159b-S.
8

that 	the 	phrase 	"other means 	of communication" 	in HEERA 	section
3568 	entitles 	employee organizations 	to have access 	to 	the
University's 	internal mail 	system free 	of 	charge77 subject 	to
"reasonable 	regulation."
In 	its brief before 	the Board, 	the University does not
dispute 	that section 3568 	creates 	a 	right of access to 	internal
mail systems, 	but asserts 	that a 	total ban on employee
organization access 	to 	its 	internal mail 	system is 	a
"reasonable 	regulation" 	within 	the meaning of section 3568. 	In
its view, 	denial of access 	to 	the 	internal mail system 	is
reasonable 	because 	alternative means 	of communication 	exist 	by
which 	employee 	organizations 	may communicate 	with 	their
members, 	because access 	to 	its 	internal mail system would place
an 	"undue burden" on the system, 	and because, 	in any event,
United 	States postal 	statutes 	and 	regulations prohibit 	the
University 	from carrying 	unstamped 	employee 	organization
material 	through 	its 	internal mail 	system.
Alternative 	Means 	of 	Communication
The University argues 	that 	it 	is 	reasonable 	to deny
employee 	organizations access 	to 	the 	internal mail 	system
because 	alternative means 	of communication 	exist.
77 we	we 	have previously held 	that 	the 	exercise 	of 	statutory
access 	rights cannot 	be conditioned upon 	the payment of 	fees 	to
an employer 	(Regents 	of the University of California, 	Lawrence
Livermore 	National Laboratory 	(4/30/82) 	PERB Decision No.
212-H), 	and we so hold today.
99

In 	Richmond 	Unified 	School 	District/Simi 	Valley Unified
School District, 	supra, 	and in a number of subsequent cases,
the 	Board has 	considered 	the meaning 	of 	the 	term 	"reasonable
regulation" 	as 	it appears 	in EERA subsection 3543.l(b) 	and
HEERA section 	3568. 	Long 	Beach 	Unified 	School 	District
(5/28/80) 	PERB Decision No. 	130, 	Marin Community College
District 	(11/19/8 0) 	PERB Decision No. 	145; 	Regents of the
University 	of California 	(Lawrence 	Livermore 	National
Laboratory), 	supra; 	Regents of the University of California
(UCLA Medical Center) 	(8/5/83) 	PERB Decision No. 	329-H. 	Thus,
after 	analyzing 	both 	federal 	cases 	concerned 	with 	the 	right 	of
access 	under 	the 	NLRA 	and 	federal 	constitutional 	cases
governing 	the right of access 	to public 	facilities, 	the Board
concluded:
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.l(b) 	should be 	narrowly drawn
to cover 	the 	time, 	place and manner 	of the
activity, 	without 	impinging on 	the content
unless 	it presents a 	substantial 	threat 	to
peaceful school operations. 	Richmond
Unified 	School 	District/Simi Valley 	Unified
School District, 	supra, 	at p. 	19. 	(Emphasis
added.)
Thus, 	while we have weighed the existence of other means 	of
communication when determining 	whether 	access 	regulations 	are
reasonable, 	we have only done so where 	the employer 	has
introduced 	evidence 	that 	a particular 	means 	of 	access 	will
10

cause 	"disruption" 	to 	the normal 	functioning of 	the 	employer's
business 	and 	the 	rules 	"are narrowly drawn 	to avoid 	overbroad,
unnecessary 	interference with 	the 	exercise 	of 	statutory
rights." 	Regents 	of the University of California 	(Lawrence
Livermore National Laboratory), supra, at p. 15.
In 	this case, 	the University makes no argument 	that
permitting employee 	organizations 	to have 	access 	to 	the
internal mail 	system will disrupt 	the 	functioning 	of 	the
University, 	nor does 	it assert 	that 	its regulation 	is 	"narrowly
drawn." 	Rather, 	it argues 	that 	the mere existence of other
means 	of communication 	transforms 	its 	outright denial of 	the
right 	to use 	the 	internal mail 	system 	into 	a 	"reasonable
regulation." 	We do not agree. 	The means of access 	set 	forth
in 	section 	3568 	are 	independent 	statutory 	rights 	and,
therefore, 	the right of an employee organization to use any
particular 	means 	of access may not 	be defeated 	simply because
alternative means exist. 	Were 	this not 	the case, 	an employer
could, 	for example, 	deny employee organizations 	the right 	to
use 	"mailboxes" 	or 	"institutional 	facilities" merely because an
adequate number 	of "bulletin boards" 	exist. 	Such was hardly
the 	intention of 	the 	Legislature when 	enacting section 	3568.
Undue 	Burden
Next, 	the University contends 	that affording 	employee
organizations access 	to 	the 	internal mail 	system would cause 	an
undue 	burden 	on 	the 	system.
11

In the original proposed decision, 	the ALJ found 	the
University's 	contention 	that providing 	access 	would 	be 	unduly
burdensome was 	"speculative at best," noting that, 	if access
were not permitted, 	the UC 	mail 	system would still be 	required
to deliver 	employee 	organization mail sent via 	the 	U.S. 	mails
to various 	campus 	locations 	not serviced directly by 	the Postal
Service. 	The ALJ also rejected 	the 	University's contention
that access would cause delays 	in the delivery of mail. 	He
noted 	that 	such delays occurred mainly at 	the 	central
distribution 	center 	where mail 	is 	sorted 	for 	delivery 	to campus
locations. 	AFSCME's practice had been 	to bypass 	the central
location 	and place 	its communications directly 	in 	supervisors'
boxes 	for 	distribution to custodians 	at various campus
buildings.
At 	the 	supplemental hearing before ALJ Tamm, 	the University
offered 	the 	testimony of Marvin Eckard, 	the 	supervisor 	of 	the
Berkeley mail 	system, 	to establish 	that 	the 	system would be
unduly burdened 	if 	employee 	organizations 	were 	permitted 	access
to the system. 	Eckard testified that, 	in his opinion, 	if
employee 	organizations were permitted access 	to 	the 	internal
mail 	system, 	the result would be an 	increased burden on 	the
system. 	Eckard admitted 	that 	if U.S. 	postage were affixed 	to
incoming 	employee organization mail, 	the UC mail service would
still 	have 	to 	deliver 	those materials 	no matter 	how burdensome
delivery was on 	the 	system. 	However, 	he 	felt that because
12

employee 	organizations would not have 	to bear 	the cost of
postage 	if afforded access 	to the 	internal mail system, 	they
would 	naturally 	tend 	to 	send 	a 	proportionally 	greater 	volume 	of
mail 	through 	the UC 	system than 	they would 	if 	they were
required to send 	that mail 	through normal postal channels. 	He
cited no evidence 	to support 	this conclusion. 	Calvin Andre, 	a
witness 	for 	the 	Charging Party and an employee of LLNL,
testified 	that his 	organization 	would 	tend 	to 	send more
communications 	if 	it did not have 	to pay postage costs.
Weighing 	this evidence, 	ALJ Tamm concluded 	that:
The 	picture 	painted 	by 	Eckard 	generally
supports 	a 	finding 	that any 	increase 	in mail
would place 	additional 	burden 	on 	the
system. 	Yet an 	increase 	in employee
organization mail 	is no more 	burdensome 	than
an 	increase 	in mail 	sent by any University
department. 	Furthermore, 	if U.S. postage
were affixed, 	all of the employee
organization mail would be accommodated. 	It
is 	therefore concluded 	that none of 	the new
evidence 	demonstrated 	that 	employee
organization mail 	would 	unduly burden 	the
mail 	system.
The University argues 	that Tamm's 	conclusions 	fail 	to 	take
into account 	the 	fact 	that, 	since 	the Postal 	Service delivers
directly to 50 	locations on the Berkeley campus, 	access 	to the
internal mail 	system would 	automatically 	increase 	the 	burden 	on
the system in terms of sorting, 	binding, 	and delivering mail.
We agree with 	the University that, 	to 	the extent 	that 	the
Postal 	Service 	delivers 	directly to campus 	locations 	without
the UC mail service having 	to handle 	that mail, 	any 	transfer 	of
13

responsibility 	from the USPS 	to 	the UC mail service, 	would 	tend
to add some burden 	to the UC 	mail 	system in terms 	of
responsibility 	for 	processing 	that portion of 	the mail
previously handled exclusively by the USPS. 	However, 	the mere
fact 	that 	the 	University might have 	to process 	some 	unspecified
additional amount of mail does not, 	ipso facto, 	prove that such
an 	increase 	would be 	excessively burdensome.
The University's 	evidence 	to support 	its contention 	that
employee 	organization access 	to 	the 	internal mail 	system would
be 	excessively burdensome 	on 	the 	system 	is 	based 	entirely on
the predictions 	of Marvin Eckard and 	Calvin Andre, 	who
testified that, 	in their opinions, 	employee organizations would
tend 	to 	send more 	communications 	through 	the 	internal mail
system if it cost less than using the U.S. 	mails. 	In our view,
opinion evidence of 	this 	sort 	is 	simply 	insufficient 	to
establish 	that 	affording 	access 	to 	the 	internal mail 	system
would 	so burden 	the 	system 	that 	it 	is 	reasonable 	to deny 	access
altogether. 	Indeed, 	we fail to see how this evidence even
establishes 	that affording 	access would cause a 	substantial
increase 	in 	the volume of mail carried by the UC 	mail 	service.
Moreover, 	we 	find 	that 	the 	"floodgate" 	theory asserted by
the University on appeal 	is 	unsupported by 	the 	record. 	There
was no evidence 	introduced 	to 	show 	that, 	during 	the period of
time when AFSCME 	Local 371 	had been granted 	access 	to 	the
14

University's 	internal mail system, 	an undue burden on 	the
system resulted. 	On 	the contrary, 	the evidence demonstrates
that 	the 	University's delivery of 	employee 	organization
materials did not cause an appreciable 	increase 	in 	the volume
of mail. 	Nor has 	the University introduced evidence 	that, 	in
the period 	since 	it 	suspended 	the 	right 	of 	employee
organizations 	to use 	the mail system, 	thus 	requiring 	those
organizations affix postage 	to their 	letters, 	there has been a
decrease 	in 	the volume of employee organization mail. 	In
short, 	as the ALJ found, 	the University's contention that
carriage 	of 	employee 	organization material will 	excessively
burden 	the 	system 	is 	entirely speculative.
Similarly, 	because of 	the 	speculative nature of 	the
University's 	argument, 	there 	is no convincing evidence 	that
permitting employee 	organizations 	to have 	access 	to 	the
internal 	mail 	system would create 	any additional 	financial
burden on 	the 	University. 	It 	is 	undisputed 	that 	the 	University
is required 	to process 	incoming U.S. 	mail free of charge
irrespective of 	the volume of mail 	received. 	The 	record
reflects 	that 	the 	UC mail 	system finances 	the cost of
8The 	evidence does 	indicate 	that 	the U.C. 	mail 	service
assesses 	individual 	University departments 	a surcharge for
handling 	outgoing U.S. 	mail. 	Since employee organizations are
not departments of 	the 	University, 	they would have no occasion
to process outgoing U.S. 	mail 	through 	the University's 	internal
mail 	system.
15

processing 	incoming U.S. 	mail 	through 	a 	budgetary allocation
from the UC general fund. 	Thus, 	if employee organizations were
required 	to 	send all mail 	to 	their 	members 	through 	the 	U.S.
mails, 	UC 	would be required 	to bear 	the cost of processing 	that
mail. 	If, 	on the other hand, 	employee organizations were
permitted 	to use 	the 	internal mail system free of charge, 	the
University would 	still be 	required 	to 	bear 	the 	processing 	costs
out of 	its general 	fund. 	Thus, 	irrespective of the method of
delivery, 	the 	University would be 	required 	to 	underwrite 	the
cost of processing 	incoming 	employee 	organization mail.
Only 	if 	it 	could 	be demonstrated 	that 	private 	carriage 	of
employee organization mail has, 	in fact, 	created an undue
burden on 	the 	internal mail 	system would we 	be 	inclined 	to 	look
more 	favorably upon UC's 	argument. 	However, 	the University's
decision 	to deny 	employee 	organizations 	any 	right whatsoever 	to
use 	the 	internal mail 	system before 	it accumulated 	evidence 	of
an 	increased 	burden 	on 	the 	system 	fundamentally 	undermines 	its
position. 	Indeed, 	such 	is 	the risk any employer 	takes when 	it
constructs 	rules of access which are 	overbroad.
Federal Postal 	Statutes 	and Regulations
The 	University's main argument 	is 	that 	federal postal
statutes 	and 	regulations prohibit 	it 	from carrying 	unstamped
employee 	organization materials 	through 	its 	internal mail
system and, 	therefore, 	its denial of access is reasonable. 	For
16

the reasons 	set forth below, 	we reject 	the University's
argument.
Article 	I, 	section 8, 	clause 7 	of the United States
Constitution 	authorizes 	Congress 	to establish 	"post 	offices 	and
post 	roads." 	This provision of 	the Constitution has 	long 	been
interpreted as 	giving 	the 	federal 	government a monopoly over
the delivery 	of letters. 	Associated Third Class Mail Users v.
USPS 	(D.C. Cir. 	1979) 	600 F.2d 824, cert. den. 	(1979) 	444 U.S.
837; 	National Association of Letter Carriers, 	AFL-CIO v.
Independent Postal System of America, 	Inc. 	(19th Cir. 	1972) 	470
F.2d 265; 	Ex Parte Jackson 	(1878) 	96 U.S. 	727; 	21 Op. Att'y
Gen. 	(1896). 	The 	"Private Express Statutes" 	(39 U.S.C,
section 601-606; 	18 U.S.C, 	section 1693-1699, 	1724) 	generally
prohibit 	the delivery of 	"letters" 	along 	"post routes" 	by
anyone other 	than the United States Postal Service, 	but
establish certain 	statutory exceptions 	to 	the 	Postal 	Service's
monopoly over 	the delivery 	of 	letters. 	Pursuant 	to 	these
statutes, 	the USPS has developed rules permitting private
carriage 	of 	letters 	by 	individuals 	and entities. 	(39 C.F.R.
310 	and 	320.)
In 	this case, 	AFSCME 	seeks to have the University deliver
various 	official 	union communications 	through 	its 	internal mail
system. 	These communications 	include: 	(1) 	general notices of
union activities; 	(2) 	union publications 	including newsletters;
(3) 	materials concerning AFSCME's position on collective
17

bargaining and election issues; 	(4) 	notices of changes or
modifications 	in University rules, 	regulations, 	and benefits
affecting members of AFSCME; 	and 	(5) 	other materials generally
concerned with 	the 	business 	of AFSCME 	and 	its members. 	To 	the
extent 	that 	these communications 	are 	"letters" 	within 	the
meaning 	of 	the Private Express 	Statutes 	and 	the 	regulations
promulgated 	thereunder,9 they may be 	carried privately by 	the
University only 	if carriage 	falls within one of 	the
"exceptions" 	or 	"suspensions" 	established by 18 U.S.C, 	sections
1694 	and 	1696 	and 	39 C.F.R, 	sections 	310.2 	and 	320. 	The only
exceptions 	or 	suspensions 	that are 	relevant 	to 	this 	case 	are
the 	"Private 	Hands Without Compensation" 	exception 	(39 	C.F.R.
310.3(c)), 	the 	"Letters of the Carrier" 	exception 	(39 C.F.R.
310.3(b)), 	and 	the suspension for 	"certain letters of college
and university organizations" (39 C.F.R. 320.4).10 10
9"Letters" 	are 	comprehensively defined 	at 	39 	C.F.R,
section 310.1. 	It is clear 	that, 	with 	the possible exception
of union newsletters, 	all of the communications 	involved herein
are 	"letters" 	within 	the meaning of 	the 	Private Express
Statutes.
10The 	other 	"exceptions" 	are 	for 	letters accompanying
cargo 	(39 C.F.R, 	section 310.3 (a)), 	letters sent by special
messenger 	for 	a particular 	occasion 	(39 C.F.R, 	section
310.3(d)), 	and the private carriage of letters to a location
where 	they then enter 	the mail 	stream 	(39 C.F.R, 	section
310.3(e)). 	The other 	"suspensions" 	are for certain data
processing materials 	(39 C.F.R, 	section 320.2(a)),
international-ocean 	carrier-related 	documents 	(39 	C.F.R,
section 320.5), extremely urgent letters 	(39 C.F.R. 	320.6), and
advertisements 	accompanying parcels 	or 	periodicals 	(39 	C.F.R,
section 320.7) .
18
10

The 	Private Express 	Statutes prohibit 	the private carriage
of mail over 	"post routes." 	18 U.S.C, 	section 1696(a).
Title 39 CFR 310.l(d) 	defines 	"post routes" 	as 	"routes on which
mail 	is carried by the U.S. 	Postal Service." 	The 	term 	"post
routes" 	also 	includes any two places 	between which 	the mails
are regularly carried. 	18 U.S.C, 	section 1696(a); 	USPS
Advisory Opinion PES 	77-28.
The record 	establishes 	that at the Berkeley campus, 	the
delivery routes of both 	the Postal 	Service 	and 	the 	University
mail 	service 	are 	substantially similar, 	inasmuch 	as 	both
organizations 	use most of 	the same 	surface 	streets. 	The 	Postal
Service 	delivers 	directly 	to 	approximately 	50 	locations 	on 	the
Berkeley campus 	and 	the 	UC mail 	service 	delivers 	to 	those 	same
50 	locations, 	plus an additional 100 	locations. 	When mail sent
through 	the U.S. 	mails 	is 	addressed to a 	location not serviced
by 	the Postal Service, 	delivery 	is made 	to a central campus
location, 	and 	from that location 	it 	is carried to 	its 	final
destination by the UC 	mail 	service. 	While 	it would be possible
for 	the 	UC mail 	system to use routes not utilized by 	the 	Postal
Service 	in order 	to deliver mail to 	those campus 	locations 	to
which 	there 	is no direct delivery by 	the USPS, 	thereby avoiding
"post routes" 	within 	the meaning of the Private Express
Statutes, 	we 	find 	that such a 	requirement would place 	an
impractical burden on the UC 	mail system. 	Accordingly, 	we 	find
that delivery by 	the 	UC 	mail 	system at 	the 	Berkeley campus
19

crosses postal routes, 	and private carriage, 	if permissible,
must fall within one of 	the exceptions or 	suspensions of 	the
Private Express Statutes set forth above.1111
Private 	Hands Without Compensation 	Exception
Title 18 U.S.C, 	section 1696(c) 	provides, 	in relevant part,
that the Private Express Statutes 	"shall not prohibit 	the
conveyance 	or 	transmission of 	letters 	or packets 	by private
hands without compensation. 	. 	. 	." 	The regulation governing
the Private Hands Without Compensation exception 	is codified at
39 C.F.R, 	section 310.3(c). 	It provides:
The 	sending 	or 	carrying 	of 	letters 	without
compensation 	is permitted. 	Compensation
generally consists 	of a monetary payment 	for
services 	rendered. 	Compensation may also
consist, 	however, 	of non-monetary valuable
consideration and of good will. 	Thus, 	for
example, 	when a business relationship exists
or 	is 	sought between 	the carrier 	and 	its
user, 	carriage by the carrier of the user's
letter 	will 	ordinarily not 	fall 	under 	this
exception; 	or, 	when a person is engaged in
the 	transportation of goods or 	persons 	for
hire, 	his carrying of letters 	"free of
11In 	contrast 	to 	the 	evidence concerning 	the Berkeley
campus, 	it appears 	that at 	Lawrence Livermore National
Laboratory, 	the USPS 	does not deliver 	to any area within 	the
"secured area" 	of the Laboratory. 	Hence, 	private carriage of
letters 	by the UC 	mail system within 	those 	areas 	of 	the
Laboratory not 	serviced by 	the 	Postal 	Service would 	apparently
be permissible 	since 	the 	internal mail 	system does not carry
mail along USPS post routes. 	However, 	the unfair practice
charge 	in 	this case concerns 	the 	Berkeley 	campus 	and we,
therefore, 	need not determine at 	this 	time whether 	private
carriage 	of letters at LLNL 	is permissible.
20
11

charge" 	for 	customers whom he does charge
for 	the carriage of goods 	or 	persons does
not 	fall 	under 	this 	exception.12
Both 	the courts and 	the Postal 	Service 	itself, 	consistent
with the present wording of 3 9 CFR 310.3(c), 	have uniformly
concluded 	that 	"compensation" 	may take either 	a monetary or
non-monetary 	form.
In United States v. 	Thompson 	(1846) 	28 F.Cas. 	97, 	98, 	the
District Court of Massachusetts held 	that 	the 	exception did not
permit 	a private carrier 	of merchandise 	to carry packages 	over
postal 	routes 	"although no charge was made 	for 	letters as
such." 	The Court 	based 	its 	finding 	that good will constituted
"compensation" 	on 	the 	fact 	that 	the 	"tenor 	and 	scope 	[of 	the
Act was] 	. . . 	to prevent 	such competition with 	the post 	office
department."
Similarly, 	in 1896, 	the Attorney General concluded that the
12Prior 	to October 11, 	1979, 	39 C.F.R, 	section 310.3(c)
permitted 	"[t]he 	sending or 	carrying of 	letters 	if no charge
for 	carriage 	is made by the carrier." 	(Emphasis added.) 	The
regulation was modified 	to 	state 	that 	"compensation may also
consist 	. . . 	of 	non-monetary 	valuable 	consideration 	and 	of
good will." 	The 	Postal 	Service explained 	that 	the purpose 	of
the 	regulation 	revision was
. . . 	to clarify, 	rather 	than to change, 	the
Postal 	Service's 	established position,
reflected 	in previous Advisory Opinions,
that 	"compensation" could 	take 	the form of
non-monetary 	valuable 	consideration 	and 	of
good will. 	(See 43 Fed. 	Reg. 	60615, 	60618
(Dec. 	28, 	1978); 	Advisory Op. 	PES 76-4
Recon., p. 	3.)
21

"express or 	implied obligation" 	between railroad 	lines 	to carry
mail was "compensation." 	21 Ops. 	U.S. Att'y Gen. 	394, 	401.
In Advisory Opinions PES 76-4 	and 	76-4 	Reconsidered, 	the
USPS 	determined 	that 	the 	Salem Oregon 	School District 	violated
the 	Private 	Express 	Statutes when 	it delivered 	an 	employee
organization's 	mail without postage 	in accordance with 	the
provisions of a collective 	bargaining 	agreement. 	The 	agreement
provided 	that 	the 	school district could bill 	the 	employee
organization for 	reasonable costs 	incurred, 	although, 	at 	the
time 	the 	advisory 	opinion was 	issued, 	the District had waived
collection of 	the 	fee. 	The USPS held 	that consideration arose
not only 	from the express 	terms 	of 	the 	agreement, 	but 	from 	the
very nature of 	the collective 	bargaining 	process 	itself. 	As
such, 	private delivery of mail, 	whether charges were levied or
not, 	was outside 	the 	Private Hands Without Compensation
exception.13
Subsequently, 	in Advisory Opinion PES 	76-17, 	the USPS
reached 	the 	same conclusion with 	respect 	to 	the Detroit 	School
Board's 	practice of carrying 	the 	letters of 	14 	unions 	to 	their
members. 	In that case, 	the practice was based on an
established policy of the 	school board, 	rather 	than on a
13The 	position 	of 	the Postal 	Service 	in Advisory Opinions
76-4 	and 	76-4 	Reconsidered 	is 	presently being 	challenged 	before
the 	United 	States 	District Court 	for 	the 	District 	of Columbia
in National Education Association v. 	Bolger, 	Case No. 	82-2320.
As 	of 	the writing of 	this Decision, 	the Court has not 	issued
its decision.
22

collective bargaining agreement. 	The USPS 	found 	that 	the
practice 	created:
. . . 	an established benefit 	for 	all of 	the
unions whether 	or 	not set out 	in 	their
collective bargaining agreements. 	Terms and
conditions 	of 	employment 	include 	not only
those 	specifically written 	into agreements,
but also 	those which 	stem 	from 	the
employment 	relationship and 	are 	mutually
accepted by labor 	and management, 	even
though not set out 	in agreements.
On July 	2, 	1982, 	in response to a request made by the
University of California 	directly concerning 	the 	instant 	case
and PERB's Order 	in Decision No. 	183-H, 	the USPS 	issued 	its
Advisory Opinion PES 	82-9.
There, 	the Postal Service announced 	several positions which
substantially depart 	from 	its 	previous 	opinions 	and which, 	as
discussed 	infra, 	we 	find to be 	legally 	infirm.
First, 	the Postal Service further 	expanded 	the definition
of 	"compensation," 	asserting 	that 	"compensation 	arises 	from 	the
employment relationship 	itself" 	even where 	the 	employee
organization 	is not an exclusive representative. 	As 	the Postal
Service 	explained:
The actual or hoped-for 	benefits 	to the
employer-carrier 	may be 	conceived 	to 	exist
in 	increased good will on 	the part 	of
employees or 	their representatives, 	in 	the
forbearance of demands 	for 	other 	benefits,
or 	in 	the 	facilitation of a continuing
relationship.
Whether 	or 	not 	it 	is expressed 	in 	these
terms 	between 	the 	employer-carrier 	and 	the
employee-shippers, 	we consider 	the reality
23

of 	the 	situation to be 	that 	it 	is 	a service
provided by the 	former 	in 	exchange 	for 	the
latter's services. 	We 	think 	that 	this 	is
equally 	true 	of 	an 	employee 	organization
regardless of whether 	it stands 	in a formal,
legally-recognized 	relationship 	with 	the
employer. 	Adv. Op. PES No. 82-9, p. 	5-6.
More 	significantly, 	the Postal Service directly considered
the question of whether 	consideration was 	present where 	a 	state
agency 	(i.e. 	PERB) 	had ordered an unwilling employer 	to carry
employee 	organization mail as 	a matter 	of 	statutory 	right.
The Postal 	Service found that because 	the 	state 	furnishes 	a
major portion of 	the 	University's 	income, 	consideration exists
even where 	an administrative 	agency orders 	the University 	to
carry the mail. 	Thus, 	the USPS found that:
. 	. 	. 	the state, 	through the appropriation of
public 	funds, 	furnishes a major portion of
the university's 	income. 	In so doing, 	it
compensates 	the 	university 	for 	performing 	the
duties which 	it instructs 	it to perform,
including 	the carriage of 	the 	letters 	of
employee organizations. 	. 	. 	. Adv. Op. PES
82-9, at p. 	6.
And, 	in a footnote, 	the Postal Service continued:
Our 	conclusion would not be 	different 	if we
were 	to treat 	the state, 	rather 	than its
instrumentality, 	the university, 	as carrier.
In that situation, 	the employment
relationship would 	exist 	directly 	between 	the
members of the union and the state. 	Adv. 	Op.
PES 82-9, at p. 	6.
Thus, 	the Postal Service concluded that:
. . . 	it would be 	entirely 	inconsistent with
the 	revenue-protection purpose 	of 	the
Statutes 	to 	accept 	the principle 	that a duty
imposed 	by 	statute 	is performed by 	"private
24

hands without compensation." 	While 	the
legislative purpose behind 	this 	exception 	is
not clearly stated, 	it seems evident that 	it
must have been 	intended 	to permit 	the
gratuitous carriage of 	letters 	that may be
voluntarily 	undertaken 	out 	of 	friendship.
Since 	the carriage contemplated here 	is 	in no
sense a gratuitous act, 	we conclude that the
"Private hands without compensation"
exception does not apply. 	Advisory Opinion
PES 82-9, p. 	6.
Hence, 	in Advisory Opinion PES 82-9, 	the Postal Service
took 	the position 	that 	"compensation" 	within 	the meaning of 	the
Private Express 	Statutes 	and 	regulations 	exists 	in 	the 	instant
case, 	even where 	it 	is conceded 	that no 	"consideration," 	in
either 	a monetary or 	in a non-monetary 	form, 	passes between 	the
primary parties 	to 	the 	relationship 	(i.e. 	between 	the
University as carrier 	of mail 	and 	the Union as 	the 	sender 	of
the mail). 	Rather, 	the Postal Service found that consideration
may be 	found 	in any situation where 	the carrier 	is 	in some way
"compensated" 	by an outside source for 	the carriage of mail.
Since 	the 	internal mail 	system 	is 	funded by the Legislature,
any cost 	incurred 	as 	a result of PERB's 	order 	is 	"compensated"
by a 	legislative 	appropriation.
As 	the Court 	of Appeals noted 	in 	its remand decision, 	the
official 	interpretation of 	statutes 	and 	regulations 	by a
federal agency, 	though not controlling, 	is entitled to great
deference. 	Udall v. 	Tallmann 	(1965) 	380 U.S. 	1 	[13 L.Ed.2d
616]; 	Zenith Radio Corp. v. 	United States 	(1978) 	437 U.S. 	443;
25

Udall v. 	USPS 	(2d Cir. 	1973) 	480 F.2d 4; 	Wilkinson v. 	Workers
Comp. 	Appeals Board 	(1975) 	19 Cal.3d 491. 	The administrative
determinations of 	this agency are 	entitled 	to 	a 	similar 	level
of deference. 	San Mateo City School District, 	et al. 	v. 	PERB
(1983) 	33 Cal.3d 850; 	Moreno Valley Unified School District 	v.
PERB 	(1983) 	142 Cal.App.3d 191. 	For 	this reason, 	the Court of
Appeal 	remanded 	the 	instant case 	to 	the 	Board 	to determine
whether 	the Private Express Statutes 	and 	the access provisions
of HEERA could 	be 	harmonized.
The Postal 	Service's position, 	that 	"compensation" 	need not
be monetary and may 	take 	other 	forms, 	is clearly consistent
with 	the Private Express Statutes and regulations. 	However, 	we
find 	that 	the Postal 	Service's position, 	as articulated 	for 	the
first time 	in Advisory Opinion 82-9, 	that 	the Private Hands
Without Compensation 	exception 	is 	inapplicable 	where 	the
private carriage of letters 	is ordered as a matter 	of 	statutory
right by an administrative agency, 	is 	unsupportable 	in 	two
respects: 	first, 	it erroneously assumes that the assertion of
statutory access 	rights 	under 	HEERA causes 	consideration 	to
pass between 	the employer 	and the employee organization, 	and 	is
inconsistent with 	the plain meaning of 	the 	term 	"consideration"
as set 	forth 	in 	the Postal Service's 	own 	implementing
regulation; 	second, 	it concludes that private carriage of
employee 	organization mail 	undertaken 	as 	a 	result of 	an
administrative 	agency's 	order 	is 	"compensated" 	merely because
26

the 	University's 	internal mail 	system 	is 	funded 	by 	the 	State
Legislature.
The Postal 	Service's 	first contention 	fundamentally
misconstrues 	the nature of 	statutory access 	rights as 	they
traditionally exist 	in labor 	relations 	legislation. 	HEERA,
like EERA, 	SEERA, 	and the National Labor 	Relations Act, 	grants
employee 	organizations 	access 	and representational 	rights 	which
exist 	independent of 	the collective bargaining 	process. 	See
Richmond 	Unified 	School 	District/Simi 	Valley Unified 	School
District, 	supra; 	Long Beach Unified School District, 	supra;
-
Marin Community College District, 	supra 	(EERA); 	Regents of the
University of California, 	UCLA Medical Center, 	supra, 	Regents
of 	the 	University of California 	(Lawrence 	Livermore National
Laboratory), 	supra 	(HEERA); 	State of California 	(Department of
Corrections), supra 	(SEERA); Republic Aviation Corporation,
supra 	(NLRA). 	Thus, 	for example, employee organizations need
not negotiate with an employer 	in order 	to have 	the right 	to
distribute leaflets to employees, 	use employees bulletin
boards, 	or 	to represent them in grievances. 	Employee
organizations possess 	access 	rights 	irrespective 	of whether
they are exclusive representatives or, 	as 	in this case,
nonexclusive representatives. 	Since 	the 	right of access 	is 	a
statutory 	right, 	it exists whether 	the employer 	and 	the
employee organization have a formal, 	informal, good, 	bad, 	or no
relationship at all. 	Thus, 	access rights are not, 	as the
Postal 	Service 	suggests 	in Advisory Opinion 82-9, 	gained as a
27

result of 	the 	"forbearance of demands 	for 	other 	benefits" 	or
"granted" 	by an employer 	with an 	intent to 	increase 	"good will"
or 	"facilitate 	a continuing 	relationship" 	with an employee
organization. 	Such rights, 	therefore, 	may be distinguished
from 	those which 	arise 	solely 	from 	the 	collective 	bargaining
process, 	and which 	are created as a 	result of the exchange of
consideration between the parties to an agreement. 	Hence, 	the
Postal Service is simply incorrect, 	and, 	indeed, 	beyond its
area of expertise, 	when it finds 	that 	the assertion of
statutory 	access 	rights causes 	consideration 	to 	flow between 	an
employee 	organization 	and an 	employer.
Moreover, 	the Postal Service's view that consideration 	is
present whenever 	an 	employee 	organization 	avails 	itself 	of 	its
statutory 	access 	rights 	is 	inconsistent with 	the common 	law
definition of 	the 	term 	"consideration" 	and 	the whole 	thrust of
the law of contracts. 	Thus, 	it is a 	fundamental precept of the
common law that 	"neither 	the promise 	to do, 	nor 	the actual
doing of that which a promisor 	is by law . 	. 	. 	bound to do, 	is
. 	. 	. consideration." 	14 Cal. Jur.3d 304; Moore v. Bartholomae
Corp. 	(1945) 	69 Cal.App.2d 474; 	Bailey v. 	Breetwor 	(1962) 	205
Cal.App.2d 287 	[23 Cal.Rptr. 	740]; 	Henry v. 	Lake Mill Lumber
Co. 	(1956) 	139 Cal.App.2d 620 	[293 P.2d 909]; 	Schaadt v. 	Mutual
Life Ins. Co. 	(1906) 	1 Cal.App.2d 238 	[29 Cal.Rptr. 	7 5 0 ] . 1 4
1 4 See also, 	California Civil Code section 1605,
which defines 	consideration as:
28

Simply stated, 	where 	a legal obligation already exists 	between
the parties, 	no consideration passes between them when one
party 	undertakes 	to perform 	its 	preexisting duty--in 	this 	case
the 	statutory 	obligation 	imposed 	upon 	the University 	by 	section
3568 	of HEERA to afford 	employee 	organizations 	access 	to 	its
internal mail system. 	Thus, 	PERB's 	order would not cause
"consideration" 	to 	flow between 	the parties 	affected 	by 	that
order.
Nor 	do we agree with 	the Postal Service's position, 	as
articulated 	in Advisory Opinion 	82-9, 	that 	the University would
be 	"compensated" 	within 	the meaning 	of 	the Private Express
Statutes 	for 	its 	carriage of 	employee 	organization mail 	simply
because 	its 	internal mail 	system 	is 	funded by a 	legislative
appropriation.
In 	every 	Postal Advisory 	Opinion 	construing 	the Private
Hands Without Compensation 	exception 	other 	than Advisory
Opinion 82-91 5 , it 	is 	explicitly stated 	that consideration
must arise 	from 	the 	relationship between 	the 	carrier 	and 	the
Any benefit conferred, 	or 	agreed to be
conferred, 	upon the promisor, 	by any other
person, 	to which the promisor 	is not
lawfully entitled, 	or any prejudice
suffered, 	or agreed to be suffered, 	by such
person, 	other 	than such as he 	is at 	the time
of consent lawfully bound to suffer, 	as an
inducement to the promisor. 	. 	. 	. 	(Emphasis
added.)
1 5 See, e.g., Advisory Opinions 76-4, 76-9, 76-12, 76-15,
76-17, 	77-8.
29

sender. 	As 	the 	Postal Service stated 	in Advisory Opinion 	PES
76-15, 	at p. 	3:
The Postal Service has consistently held
that 	the 	Private 	Hands without compensation
exception does not apply 	in a 	situation 	in
which 	the carriage of letters, 	although
ostensibly 	performed 	without 	compensation,
is nevertheless 	offered because of a
business or 	other 	economic 	relationship
between 	the carrier 	and 	those 	for 	whom he
carries letters. 	[Citations omitted]. 	In
each case, 	it was determined that the
relationship between 	the parties gave rise
to 	a 	form of consideration 	flowing 	to 	the
carrier, 	which made the exception
inapplicable. 	(Emphasis added.)
Similarly, 	when determining 	that 	free carriage of employee
organization mail by 	the 	Detroit 	School 	Board was 	compensated,
the 	Postal 	Service 	stressed 	the 	consideration 	flowing 	between
the parties 	to an ongoing 	economic 	relationship:
[T]he delivery 	services 	rendered 	for 	the
unions clearly constitute 	a 	term or
condition of employment, 	in the form of a
consideration to 	the unions. 	In return for
this and other considerations, 	the Detroit
School 	Board 	receives 	legal consideration
from the unions, 	namely, 	the services of the
persons whom the unions represent, 	and also
the good will of the unions. 	Accordingly,
we believe 	that 	the element of consideration
is present in this case. 	(Emphasis added.)
Adv. 	Op. 	76-17.
In Advisory Opinion 82-9, 	however, 	the Postal Service found
that here 	the State, 	rather 	than 	the employee organization,
would provide compensation 	to 	the University 	for 	carriage 	of
mail.
Indeed, 	the Postal Service's 	theory, 	as articulated 	in
Advisory Opinion 82-9, 	would foreclose application of 	the
30

Private 	Hands without Compensation 	exception 	in any situation
-
where 	an entity other 	than a private 	individual 	agrees 	to carry
mail. 	After all, 	any institution which agrees 	to carry mail
without charge 	on behalf of another 	person or 	institution must
fund 	from its 	own assets 	the 	operational costs 	of 	such
carriage. 	Where the entity is public, 	its funding will
inevitably derive 	from a 	legislative 	or 	other 	tax-based
1	source.16	6 	Therefore, 	under 	the Postal Service's
interpretation, 	even 	if a public 	institution agrees 	to carry
the mail purely out of 	gratuitous 	friendship, 	the
"compensation" 	it would receive 	in 	the 	form of budgetary
allocations 	would preclude 	application 	of 	the Private Hands
exception.17	17 	Thus, 	the Postal Service's 	interpretation 	in
Advisory Opinion 	82-9 	would 	render 	the 	Private 	Hands 	exception,
virtually meaningless.
The University asserts 	that, 	while access rights 	in this
case are 	asserted as 	a matter of statutory right, 	at 	some
17Compare, 	however, 	Advisory Opinion PES 	77-8, 	where the
USPS 	found 	that 	the 	Private 	Hands Without Compensation
exception was applicable 	to 	the decision of 	the 	Indianapolis
School 	Board 	to carry food 	stamp circulars 	on behalf of a
community organization, 	notwithstanding 	the 	fact 	that 	implicit
in 	the school board's agreement to carry 	the circulars was 	a
decision 	to 	underwrite 	the cost of delivery. 	To 	the 	extent
that 	the 	School 	Board 	received 	revenue 	from a 	legislative 	body,
its agreement 	to carry mail would be 	"compensated" 	in a manner
indistinguishable 	from 	this 	case.
31
1166where	where 	the institution is private, 	of course, 	the source
of 	funding will be derived 	from a private 	source 	(i.e.,
corporate assets) .

future point when an exclusive representative 	is 	selected, 	the
parties might 	seek 	to negotiate 	the right 	to use 	internal mail
systems. 	Hence, 	at that time, 	consideration might inure to the
University as a 	result of 	the process 	of reaching 	a 	collective
bargaining 	agreement with 	the 	exclusive 	representative.
Although 	the Board 	has held that access 	rights 	are negotiable
(Healdsburg 	Union 	High School 	District 	and 	Union 	School
District/San Mateo City School District 	(1/5/84) 	PERB Decision
No. 	375), such negotiations only concern the time, place, and
manner 	of access. 	As discussed above, 	the employee organization
is not required 	to negotiate 	in order 	to assert 	its 	basic
statutory right of access. 	Indeed, 	as in this case, 	the employee
organization 	need not be 	an exclusive 	representative 	to 	assert
its statutory access rights. 	Thus, 	in our view, 	the assertion of
the basic 	right of access 	is 	independent of 	the collective
bargaining process.
In sum, 	the Postal Service's position, 	as articulated 	in
Advisory Opinion 82-9, 	is contrary to 	the plain meaning of 	its
own 	implementing 	regulations 	and a 	well-reasoned approach 	to 	the
law of contracts and labor relations. 	We, 	therefore, 	conclude
that 	the carriage of Union materials 	through 	the 	University's
internal mail 	system falls 	within 	the 	Private Hands Without
Compensation exception and, 	as such, 	is not prohibited by the
Private Express Statutes.
Letters 	of 	the Carrier Exception
Title 18 U.S.C, 	section 1594 provides:
Whoever, 	having charge or control of any
conveyance operating by land, 	air or water,
32

which 	regularly performs 	trips 	at 	stated
periods on any post route, 	or 	from one place
to another 	between which 	the mail 	is
regularly carried, carries, 	otherwise than
in the mail, any letters or packets, except
such 	as relate 	to some part 	of 	the cargo of
such conveyance, 	or 	to the current business
of the carrier, 	or 	to some article carried
at 	the 	same 	time by the same conveyance,
shall, 	except as otherwise provided by law,
be fined not more 	than $50. 	(Emphasis
added.)
The 	implementing 	regulation of the Letters 	of the Carrier
exception is set forth at 39 C.F.R, 	section 310.3(b). 	It
provides:
(1) 	The sending 	or carrying of letters 	is
permissible 	if 	they are sent by or 	addressed
to 	the person carrying 	them. 	If 	the
individual 	actually carrying 	the 	letters 	is
not 	the person 	sending 	the 	letters or 	to
whom the 	letters are addressed, 	then such
individual must be an officer 	or 	employee of
such person 	(see section 310.3(b) (2) 	and the
letters must relate 	to 	the current business
of 	such person.
(2) 	The fact that the 	individual actually
carrying 	the 	letters may be 	an officer 	or
employee 	of 	the person 	sending 	the 	letters
or 	to whom 	the 	letters are 	addressed for
certain purposes does 	not necessarily mean
that he 	is an officer 	or 	employee 	for
purposes of this exception. 	The 	following
factors bear 	on qualifications 	for 	the
exception: 	the carrying 	employee 	is
employed for 	a substantial time, 	if not full
time 	(letters must not be privately carried
by casual employees), 	the carrying employee
carries no matter 	for other 	senders, 	the
carrying employee 	is 	a 	regular 	salaried
employee 	and 	shares 	in all privileges
enjoyed 	by 	other 	regular 	employees
(including 	employees 	not 	engaged 	primarily
by the letter carrying function), 	including
but not limited to salary, 	annual vacation
33

time, 	absence allowed for 	illness, 	health
benefits, 	workmen's compensation insurance,
and 	retirement benefits.
(3) 	Separately 	incorporated carriers are
separate entities 	for purposes of 	this
exception, 	regardless of any subsidiary,
ownership, 	or leasing arrangement. 	When,
however, 	two concerns 	jointly operate an
enterprise with 	joint 	employees 	and share
directly 	in 	its revenues 	and expenses,
either 	of 	the concerns may carry 	the 	letters
of 	the 	joint enterprise.
Generally, 	the Letters of the Carrier 	exception permits 	a
person or 	entity to deliver 	its 	own letters 	to another 	address
or 	to pick 	up letters 	addressed 	to 	it 	from a another 	person 	or
entity. 	Where 	the carrier 	is an 	institution rather 	than 	an
individual, 	letters 	addressed to 	its employees must concern 	the
"current business" 	of that institution. 	In other words, 	the
Letters of 	the Carrier 	exception does 	not permit 	an 	employer 	to
carry personal 	letters addressed to 	its 	employees. 	See
Advisory Opinions PES 74-22, 76-12, 76-14; 76-17, 82-16.
In Advisory Opinion PES No. 	76-4, 	Reconsidered 	(1/15/82),
supra, 	the Postal 	Service determined 	that the Letters of 	the
Carrier 	exception 	is 	inapplicable 	to 	the carriage of 	union mail
through a school district's 	internal mail system. 	In 	the
opinion of the Postal Service, 	the exception was not applicable
because 	letters 	addressed 	to employees 	in 	their 	capacity as
members 	of an employee organization did not concern 	the
"current business" 	of the carrier 	school district. 	As 	the
Postal 	Service 	stated:
34

We 	think 	it clear 	that 	interrelated 	though
their 	activities and goals may be, 	the
District 	and the Association 	are 	legally
distinct entities in every sense, 	the
Association's 	letters 	to 	its members can 	in
no 	sense 	be 	regarded as 	sent by or 	addressed
to the carrier-District, 	and the exception
is 	therefore 	inapplicable.18
In Advisory Opinion 82-9, 	relying on 	its rationale 	in
Advisory Opinion 	76-4 	Reconsidered, 	the Postal Service
determined 	that 	the 	Letters of 	the Carrier 	exception did not
apply to 	the facts of this case, 	since employee organization
materials were not related to 	the 	"current business" 	of 	the
University 	of California.
In our view, 	the position of the Postal Service applies an
altogether 	too 	limited view of what 	constitutes 	the 	"current
business" 	of 	the University of California. 	The purpose of
HEERA 	is 	to ensure 	"the development of harmonious and
cooperative 	labor 	relations 	between 	the public 	institutions 	of
higher 	education and 	their 	employees." 	(HEERA subsection
3560(a)). 	Section 3565 of the Act affords employees 	the right
to 	"form, 	join, 	and participate 	in 	the activities of employee
organizations." 	It 	requires higher 	education employers 	to meet
and confer 	with 	non-exclusive 	representatives 	(California 	State
University, 	Sacramento 	(4/30/82) 	PERB Decision No. 	211-H) 	and
18ge 18See also Ad. Op. 76-17, where the Postal Service held
that employee organization 	letters 	do not 	relate 	to 	the 	current
business of the school board carrier, 	but, 	rather, 	to the
current business of 	the 	union with which 	the 	school 	board deals.
35
18se

to negotiate with exclusive 	representatives over 	all matters
within the scope of representation. 	(Section 3570). 	Employees
have 	a 	right to 	file 	grievances 	and 	employee 	organizations have
a right 	to represent employees 	in those grievances. 	(Section
3567; 	The 	Regents of 	the 	University of California 	(Berkeley)
(5/16/83) 	PERB Decision No. 	308-H.) 	It 	is an unfair 	labor
practice 	for 	employers 	to 	interfere with 	these 	rights 	or otherwise
discriminate or coerce employees 	in retaliation for 	the
exercise of such rights. 	(Section 3571.) 	Hence, 	it is our
opinion 	that 	the Legislature, 	by enacting 	a comprehensive
system of 	collective 	bargaining 	for 	higher 	education 	employees
of 	the State of California, 	has determined 	that 	labor 	relations
matters are 	the 	"current business" 	of 	the 	University.
Moreover, 	the 	few court 	decisions 	which have considered 	the
Letters of 	the Carrier exception have held 	that, 	where an
interdependent 	relationship exists between 	the parties 	to a
business 	relationship, 	the exception may apply notwithstanding
the 	fact 	that they are separate entities.
In United States v. 	Erie Railroad Co. 	(1914) 	235 U.S. 	513
[59 L.Ed. 	335], 	the U.S. 	Supreme Court held that the Letters of
the 	Carrier 	exception applied to 	the carriage of 	letters 	for 	a
telegraph 	company by a 	railroad pursuant 	to an agreement
between 	the 	two companies. 	In determining 	that 	the exception
applied, 	the Court stated:
[W]hile 	the companies 	in many respects are
independent, 	they are also, 	in some
36

respects, at least, dependent. 	. 	. 	.
[W]hile 	it may be said 	that 	there 	is a
railroad business 	in which 	the 	telegraph
company has no concern, 	that is, 	business
distinctly railroad, 	yet it 	is also so far
concerned with 	the 	telegraph 	business 	as 	to
make 	its 	efficient 	and 	successful 	operation
of 	interest to it.
In United States v. 	Southern Pacific Co. 	(D.C. Az. 	1928) 	29
F.2d 433, 	a District Court concluded 	that 	the 	"Letters of 	the
Carrier" 	exception 	(as codified at 18 	U.S.C, 	section 307
(1926)) 	did not apply to 	the carriage of 	letters by 	the
Southern 	Pacific 	Company 	for 	another 	independent 	corporation,
the 	Southern Pacific Company of Mexico. 	Because 	the 	two
companies 	operated 	independently 	of 	each 	other 	and 	did 	not
share 	a 	"direct 	interest," 	the Court held 	that, 	unlike 	the U.S.
v. 	Erie Railroad Co. 	case, 	the letters of the Mexico line could
not be considered 	those of 	the 	carrier 	Southern 	Pacific 	Company.
Thus, 	these cases support 	the view that 	the Letters of the
Carrier 	exception may apply 	to 	two 	independent 	entities where
carriage 	would enhance a 	relationship 	in which 	each has a
"direct interest." 	In this case, 	as noted above, 	such an
interdependent 	relationship 	is created 	by the very 	nature 	of 	a
collective 	bargaining 	statute 	like HEERA.
We conclude 	that, 	by affording employee organizations 	the
right 	to use 	the 	internal mail 	facilities of higher 	education
employers, 	the Legislature has evidenced an 	intent to make
labor 	relations matters 	the 	"current business" 	of 	the
37

University. 	Accordingly, 	we find 	that 	the Letters of the
Carrier 	exception 	applies 	to 	the carriage of employee
organization 	letters 	through 	the 	internal mail 	system of 	the
University 	of California.
Suspension of Private Express 	Statutes 	for Certain University
Organizations
Title 	39 CFR section 320.4 	provides 	that the operation of
the 	Private Express Statutes
. . . 	is 	suspended 	on all post 	routes 	to
permit colleges 	and 	universities 	to carry 	in
their 	internal mail 	systems 	the 	letters 	of
their 	bona 	fide 	student or 	faculty
organizations to campus destinations. 	This
suspension does not cover 	the 	letters 	of
faculty members, 	students, 	or organizations
other 	than bona 	fide 	student or 	faculty
organizations of 	the college 	or 	university.
Colleges 	and 	universities 	choosing 	to
provide 	their 	student or 	faculty
organizations access 	to 	their 	internal mail
systems 	are 	responsible 	for 	assuring 	that
only 	letters 	of bona 	fide 	student or 	faculty
organizations 	addressed 	to campus
destinations are carried. 	(See 	section
310.4) 	For purposes of this 	suspension,
"internal mail systems" 	are 	those which
carry letters on, 	between, 	and among the
various campuses of a single college or
university and operate 	in accordance with
the 	Letters 	of 	the carrier 	exception 	in 39
CFR 	310.3(b).
This 	suspension of the operation of 	the Private Express
Statutes was added in 1979 	(44 Fed. 	Reg. 	52835). 	Although it
has had no judicial application, 	it has been the subject of
discussion 	in several USPS Advisory Opinions.
In Advisory Opinion 76-4 	Reconsidered, 	supra, 	the Postal
Service 	rejected 	the 	assertion 	that 	this 	suspension was
38

applicable 	to 	the delivery of union mail 	in a school district.
In 	rejecting 	this contention, 	the Postal Service commented on
the purpose of 	the rule:
In 	the Notice of Proposed Rulemaking which
preceded 	issuance of 	the 	Suspension 	for
certain 	letters 	of college 	and 	university
organizations 	(43 F.R. 	60615-23, 	December
28, 	1978), we emphasized that while some
student 	and 	faculty 	organizations—those
which 	would be 	affected 	by 	the 	existence 	of
the 	suspension—are not 	legally part 	of 	the
university, 	they frequently are regarded as
"performing 	important 	functions 	in 	the
operation 	of 	the academic community," 	and
"often 	supported 	in 	a number 	of ways by 	the
college 	or 	university proper." 	It was 	this
type of university organization, 	such as 	the
school 	newspaper 	or 	intramural 	sports
league, 	that 	the Postal Service had in mind
when it issued the suspension. 	Again, 	in
the absence of 	the 	suspension only 	the
letters 	of organizations 	legally a part 	of
the 	university could be 	carried 	without
restriction. 	Our purpose was to avoid
making 	distinctions 	among 	campus
organizations 	based on circumstances,
primarily 	independent 	incorporation, 	which
are 	largely 	immaterial 	to 	their 	functioning
as part of 	the life of the campus. 	Ad. 	Op.
76-4 Recon., at p. 11.
Thus, 	the purpose of the rule 	is to permit the use of the
internal mail 	system by organizations which are not 	legally
part of a college or university and, 	therefore, 	not able to
avail 	themselves of 	the 	"Letters of the Carrier" 	exception, 	but
which 	are 	recognized 	as 	"performing 	important 	functions 	in 	the
operation 	of 	the 	academic 	community."
In Advisory Opinion 82-9, 	supra, 	the Postal Service
concluded 	that 	union mail 	could be 	carried 	in 	the 	internal mail
39

system under 	this 	suspension only 	to 	the 	extent 	that 	a 	union
was considered 	a 	"bona 	fide 	faculty organization." 	As 	the
Postal 	Service 	explained:
In PES No. 	76-4 Reconsidered, 	where we
concluded 	that 	the 	suspension does not apply
to the carriage by school districts of labor
union materials, 	we explained 	that 	the
suspension was designed 	to cover 	only
student 	and 	faculty 	organizations 	because
they are 	at 	the 	"core 	of 	'university
community 1 organizations." 	We 	noted 	that
the 	suspension might 	cover 	the carriage 	of
faculty union materials 	"only by 	virtue 	of
the 	breadth 	of 	the 	term 	"faculty
organizations' 	and not because 	faculty
unions 	are 	"truly an 	integral part 	of 	the
life of the university." 	Ad. 	Op. 	PES 82-9,
at p. 	8.
Since, 	in this case, AFSCME represents non-faculty employees,
the Postal 	Service concluded 	that 	it was 	not a 	"faculty
organization" 	within 	the meaning 	of 	the 	suspension.
It appears, 	therefore, 	that at the present time, 	the Postal
Service 	has 	not 	ruled out 	the possibility 	that a 	labor
organization 	representing 	faculty members 	at 	a college 	or
university could use 	the 	internal mail 	system under 	the
suspension. 	It does, 	however, 	seem to require that the
organization 	represent 	faculty members 	and not 	other 	employees.
In 	University of Missouri 	at 	Columbia-National 	Education
Association v. 	Dalton, et al. 	(W.D. Mo. 	1978) 	456 F.Supp. 	985,
the Court held, 	inter 	alia, 	that a university violated 	the
equal protection clause 	of 	the Fourteenth Amendment of 	the
U.S. 	Constitution by denying a labor 	union access 	to 	its
40

internal mail 	system based on 	its 	conclusion 	that 	only
organizations 	which 	"enhanced" 	the 	university would 	be
permitted 	such access. 	Citing numerous 	United 	States 	Supreme
Court decisions, 	the Court determined 	that 	it was
unconstitutional 	for 	the 	university 	to discriminate 	in 	favor 	of
one 	type 	of employee 	organization 	against another.
Similarly, 	we cannot see how 	it 	is constitutionally
permissible 	for 	the Postal Service 	to promulgate 	a 	regulation
which distinguishes 	between 	a 	labor 	organization which
represents 	"faculty members" 	and one which 	represents 	other
categories of employees. 	We, 	therefore, 	conclude that the
Postal 	Service's 	determination 	that 	the 	suspension does 	not
apply 	to 	an 	employee 	organization 	which 	represents 	non-teaching
employees of 	the University is, 	at 	the very least,
constitutionally 	suspect 	and 	not 	entitled 	to 	the 	deference
ordinarily owed 	to 	its opinions. 	Accordingly, 	we 	find that 	the
suspension 	should 	apply 	to 	employee 	organizations 	which
represent 	nonfaculty employees 	as well 	as 	faculty members.
CONCLUSION
We have 	found 	that section 	3568 	of HEERA entitles AFSCME 	to
use 	the 	internal mail 	system at 	the 	University of 	California,
Berkeley. 	In 	addition, 	we have 	found 	that private carriage of
employee 	organization materials 	through 	the 	University's
internal mail 	system does 	not conflict with 	the 	federal Private
Express 	statutes and 	regulations. 	Accordingly, 	we 	find 	that
41

the 	University's 	regulation 	prohibiting 	employee 	organization
access 	to 	its 	internal mail system is unreasonable within 	the
meaning of section 3568. 	Thus, 	we 	find 	that 	the University
violated subsection 3571(a) 	and, 	derivatively, 	subsection
3571(b) 	of 	the Act by denying AFSCME Local 	371 access 	to 	its
internal mail 	system and 	shall 	order 	the University 	to permit
AFSCME Local 3 71 to have access 	to the 	internal mail 	system.
However, 	because we recognize 	that affording 	employee
organizations 	access 	to 	the 	internal mail 	system might 	result
in some additional burden on the system, 	we shall order 	the
University 	to meet with AFSCME 	to discuss 	a 	system of
presorting, 	binding or partial delivery of mail. 19
Further, 	we note 	that 	the 	University has 	expressed concern
that, 	in the past, 	the internal mail system has utilized
supervisory employees 	to deliver 	employee 	organization
materials. 	While we agree with 	the University that an employer
has 	the 	right 	to 	require 	that 	its 	supervisory employees
maintain 	neutrality with 	respect 	to 	the 	organizational
activities of 	rank 	and file employees 	(State 	of 	California
(Department of Forestry) 	(9/21/81) 	PERB Decision No. 	174-S), we
19For 	example, 	the record 	indicates 	that 	in the past,
AFSCME officials 	had delivered mail directly 	to various campus
buildings, 	where 	they were delivered 	to employees by
supervisory employees. 	This method of delivery bypassed 	the 	UC
mail 	system's 	central distribution center where, 	the record
establishes, 	most delays 	in 	the 	system have occurred.
42

do not see how the mere carriage of mail 	by 	supervisory
employees will affect 	their 	neutrality.20
ORDER
Based on 	the 	foregoing 	Decision and 	the entire 	record 	in
this matter, 	the Public Employment Relations Board hereby
ORDERS 	that 	the 	University of California 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Denying AFSCME 	its 	rights under 	the Higher Education
Employer-Employee 	Relations Act by refusing 	it 	access 	to 	the
internal mail 	system;
2. 	Denying employees 	their 	rights 	under 	the Higher
Education 	Employer-Employee 	Relations 	Act 	by 	refusing 	employee
organizations 	access 	to 	its 	internal mail 	system.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES 	OF THE ACT:
1. 	Grant AFSCME access to 	its 	internal mail 	system for
the purpose 	of communicating with employees 	of 	the University
of California. 	Use of the mail system shall be without 	charge.
2. 	Meet with AFSCME 	to consider means by which any
burden which may be caused by delivery of 	its mail 	through 	the
internal mail 	system may be ameliorated. 	The parties 	are
20However, 	the University 	is 	always 	free 	to 	restructure
its mail 	system so as 	to 	utilize 	nonsupervisory employees 	to
carry 	employee organization materials, 	so 	long as reassignment
of personnel does not 	interfere with 	the 	access 	rights
established 	by 	this 	Decision.
43

directed to consider 	such actions as presorting, 	prebinding, 	or
centralized drop-off of mail. 	Such 	rules 	shall be reasonable,
shall not defeat 	the 	right of employees 	to 	receive
communications 	from employee organizations, 	and are 	subject 	to
approval of 	the 	Regional Director 	consistent with 	subpart B(4)
of this Order.
3. 	Within 35 days of the date that this Decision 	is no
longer 	subject 	to 	reconsideration, 	post at all work 	locations
where notices 	to employees are customarily placed, 	copies of
the Notice attached as an Appendix hereto. 	Such posting 	shall
be maintained 	for 	a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable steps 	shall be 	taken to ensure 	that such
Notices are not reduced in size, 	altered, 	defaced or 	covered by
any other 	material.
4. 	Within 35 days of the date 	this Decision 	is no
longer 	subject to 	reconsideration, 	report to 	the 	San Francisco
Regional 	Director 	of 	the Public Employment Relations 	Board 	of
the actions 	taken 	to comply with 	this 	Order. 	Report 	thereafter
to the Regional Director 	in accordance with her 	instructions.
Members Morgenstern 	and 	Burt 	joined 	in 	this 	Decision.
44

APPENDIX
NOTICE 	TO ALL 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, 	William
H. Wilson v. 	University of California, 	Berkeley, 	in which all
parties had the right 	to participate, 	it has been found 	that 	the
University of 	California 	violated 	the 	Higher 	Education
Employer-Employee Relations Act, 	Government Code 	subsections 	3571(a)
and 	(b) 	by denying employee organizations 	the right to use 	its
internal mail 	system.
As 	a 	result of 	this conduct, 	we have been ordered 	to post this
notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Denying the American Federation of State, 	County, 	and
Municipal Employees, 	Local 371 	its 	rights 	under 	the Higher 	Education
Employer-Employee 	Relations Act 	by 	refusing 	access 	to 	the
University's 	internal mail 	system;
2. 	Denying 	employees 	their 	rights 	under 	the Higher 	Education
Employer-Employee 	Relations 	Act by 	refusing 	employee 	organizations
access 	to 	the University's 	internal mail 	system.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Grant AFSCME access to the 	internal mail 	system for 	the
purpose 	of communicating 	with 	employees 	of 	the 	University of
California. 	Use of 	the mail system shall be without 	charge.
2. 	Meet with AFSCME 	to consider means by which 	any burden
which may be caused by delivery of 	its mail 	through 	the 	internal
mail 	system may be 	ameliorated. 	The parties 	are directed 	to
consider 	such actions as presorting, 	prebinding, 	or centralized
drop-off of mail. 	Such rules 	shall be reasonable and shall not
defeat 	the right of 	employees 	to 	receive communications 	from
employee 	organizations.
Dated: 	UNIVERSITY OF CALIFORNIA, 	BERKELEY
By 	,
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY 	(30)
CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE OF POSTING AND MUST 	NOT 	BE
DEFACED, 	ALTERED, 	REDUCED IN SIZE OR COVERED BY ANY OTHER MATERIAL.

STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM H. 	WILSON,
Charging 	Party,
v.
UNIVERSITY OF 	CALIFORNIA AT
BERKELEY,
Respondent.
)
) • • - .
)
) 	Unfair 	Practice
Case 	No. 	SF-CE-4-H
Proposed 	Decision
(6/17/80)
)
)
)
)
>
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: 	Gerald A. 	Becker, 	Hearing Officer.
PROCEDURAL 	HISTORY
On November 	16, 	1979, William H. 	Wilson, 	as an 	individual
and 	on 	behalf 	of 	the American Federation of 	State, 	County 	and
Municipal Employees, 	Local 371, 	(hereafter Charging Party or
Local 	371) 	filed 	this 	unfair 	practice 	charge 	against 	the
University of 	California 	at Berkeley 	(hereafter 	University).
As 	subsequently amended, 	the 	charge 	alleges 	that 	the University
violated Government Code 	sections 	3568, 	3571(a), 	(b) 	and 	(d)1
by 	prohibiting 	the 	Charging 	Party 	from 	distributing
organizational 	literature 	through 	the 	mail 	system 	in 	the
Department 	of 	Facilities 	Management.
1 1 A 1 1 statutory references are 	to the Government Code
unless 	otherwise 	specified.
1

The 	hearing 	in this matter 	was 	held 	before 	the 	undersigned
on January 	28, 	1980, 	and 	the matter 	was 	submitted 	for 	decision
on April 30, 1980.
FINDINGS 	OF 	FACT
The University maintains 	internal, 	centralized mail
services 	for 	academic, 	staff 	and 	systemwide offices. 	Services
provided 	by 	the Berkeley 	campus mail 	section 	include 	delivery
of 	interdepartmental, 	inter-campus 	and 	incoming U.S. 	mail 	to
campus 	departments. 	It also collects outgoing
interdepartmental, 	inter-campus and U.S. 	mail.
The U.S. 	Postal Service delivers U.S. mail directly to
approximately 	50 	locations 	on 	the Berkeley 	campus. 	Incoming
U.S. 	mail which 	is not delivered directly 	is picked 	up by
campus 	mail 	carriers 	from 	the 	Berkeley 	post 	office 	early 	each
morning. 	It 	then 	is 	taken 	to the campus mail 	section 	(the main
campus 	distribution 	center) 	and 	sorted 	by department 	name 	for
campus 	delivery. 	Along with 	intra-campus mail, 	it 	then 	is
delivered 	to 	the 	departments 	on 	a 	regular 	schedule.
Inter-campus mail must be 	stamped. 	However, 	no U.S.
postage 	is 	paid 	for 	internal University mail 	on 	the Berkeley
campus 	nor 	is 	there a 	recharge 	against University department 	or
office 	budgets 	for use 	of this mail 	system. 	Rather, 	the mail
system 	is 	funded 	through 	the University 	budget. 	In 	fiscal year
1978-79, 	the 	campus mail 	system processed 	almost 	13 million
N2

pieces of mail with a 	budget of 	$213,000. 	The 	budget 	for
fiscal year 	1979-80 was 	reduced 	to $180,000. 	Also 	fewer
employees 	are 	working 	in 	the 	campus 	mail 	system 	than 	in 	1978-79
•
Except 	for 	the 	delivery of 	incoming U.S. 	mail, 	University
policy provides 	that 	campus mail 	services 	are 	for 	official
University 	use 	only. 	Outside 	individuals 	and 	organizations 	are
not allowed 	to use 	campus mail 	services. 	If 	an outside
organization 	attempts 	to use 	the 	campus mail 	system for 	a
distribution 	on 	campus of 	such 	things 	as political 	literature
or 	commercial advertisements, 	the 	campus mail 	system notifies
the 	sender 	that 	the mail 	will 	not 	be processed.
Since 	1967, 	University policy 	also 	has prohibited 	employee
organizations 	from using 	the 	campus 	mail 	system 	to 	communicate
with 	employees. 	However, 	through 	unfamiliarity with 	this
University policy, 	it 	was 	not 	enforced 	in 	the Berkeley campus
custodial 	services 	department.
Prior 	to January 1979, 	the 	central custodial office had
mailboxes 	for 	individual 	campus 	buildings. 	The building
leader 	(in 	charge 	of all custodians 	in 	a particular 	campus
building) 	would pick 	up the mail 	for 	his 	building 	and
distribute 	it 	to 	the 	custodians working 	there.
After 	January 	1979, 	the main custodial office 	was moved 	to
a 	different 	location. 	There 	now 	are 	mailboxes 	only 	for
custodial 	supervisors, 	who are 	the 	next 	step up 	from building
w
	3

leaders 	in the 	line of supervision and may supervise custodial
services for as many as 15 campus buildings. 	Since January
1979, 	custodial supervisors have picked up and distributed mail
for 	the buildings under 	their supervision, bypassing the
building leaders.
Both before and after January 1979, 	building leaders and
then supervisors distributed 	unstamped mail 	from employee
organizations. 	However, on May 18, 1979, Robert Gilmore,
senior 	superintendent of physical plant and manager of
custodial services, 	attended a collective bargaining
orientation meeting presented by the University for
supervisorial personnel. 	At this meeting he learned 	it was a
violation of University policy to allow use of the University
mail system by employee organizations. 	He then held a
supervisors' meeting and told his custodial supervisors 	not to
deliver mail from employee organizations unless 	it 	is regular
stamped, U.S. mail.
Sometime after July 1, 	1979, 	after the Higher Education
Employer-Employee Relations Act 	(hereafter 	HEERA)2 became
effective, 	Local 371 attempted to distribute organizational
literature through the custodial supervisors as 	it previously
had done. 	The organization was 	told 	that supervisors could not
2Government Code section 3568 et seq.
4

deliver the mail unless it had a U.S. 	stamp on it. 	Mr. Wilson
then recovered 	the mail and he 	and other 	custodians attempted
to deliver 	the 	literature personally to custodians at 	the
various campus buildings. 	It took Mr. Wilson about three hours
to cover 	ten buildings himself. 	Not all buildings where
custodians work received 	the 	literature.
On October 30, 1979, Wilson, who was then president of
Local 371, 	had a meeting with Philip Encinio, 	the University
manager of employee relations and development, 	and
Debra Harrington, an employee relations representative, about
the prohibition on use of the University mail system. 	At this
meeting Encinio confirmed 	the 	fact that Local 371 could not,
under University policy, 	use the mail system.
One outside organization, 	the United Way charity, has been
permitted by the chancellor's office to use the campus mail
system for 	a once-a-year 	fund raising effort. 	The 	fund raising
is deemed to be an "official University use" 	and the
chancellor's office 	is billed by the campus mail division for
the cost of processing United Way's 	literature.
The University also uses 	its campus mail system to inform
employees of 	its views respecting collective bargaining. 	Last
year, 	in its monthly employee newsletter, 	"the UC Employee," a
seven-part 	series was published 	setting 	forth 	the University's
analysis of the new collective bargaining law as well as 	its
un
	5

position 	that 	it 	"does 	not 	endorse 	collective 	bargaining 	nor
view 	it 	as 	either 	desirable or 	inevitable."
As of July 	1, 	1979, 	there were 	approximately 	280 	custodians
and 9 	custodial 	supervisors on 	the Berkeley campus. 	Local 	371
has 	approximately 	140 	to 	150 members 	on the 	campus, 	most of
whom are 	custodians. 	Local 371 has 	a list of 	its 	members' 	home
addresses 	but 	the 	list 	is 	not 	accurate 	because members 	may
move without giving 	a new 	address.
Local 	371 	has 	filed 	a 	request 	for 	recognition under HEERA
for 	a 	unit 	of custodians 	at 	the Berkeley campus. 	To support
its 	request 	for 	recognition, 	Local 	371 	solicited 	authorization
cards 	from both members 	and 	non-members.
In November 	1979, 	after 	being 	refused 	use of 	the 	campus
mail 	system, 	Local 	371 	sent 	notice 	of 	an organizational
meeting, 	two weeks 	ahead of 	time, 	to 	its members 	through the
U.S. 	mail. 	However, 	due to delays of the sort which often
occur 	in the University's processing of U.S. 	mail, 	some of 	the
members 	did 	not 	receive 	their 	copies 	of 	the 	notice 	at 	their
buildings 	until 	after 	the meeting 	was 	held.
University witnesses 	testified 	that 	in 	their 	opinion 	it
would 	be 	burdensome 	if 	employee 	organizations 	were 	permitted 	to
use 	the 	campus mail 	system due 	to budget 	and 	staff cuts, 	and
increased 	work 	load. 	But 	the 	University 	witnesses 	could 	offer
no evidence 	to 	support 	their 	opinions.
6

V
Respecting 	distribution 	of 	employee 	organization 	literature
by custodial 	supervisors, 	based 	on 	the 	testimony of
Mr. 	Gilmore, 	the manager of custodial services, 	it is 	found that
it was not burdensome 	in the past 	for custodial 	supervisors 	to
distribute 	this 	literature. 	In 	fact, 	Local 371's past practice
of placing 	its 	literature 	directly 	in 	custodial 	supervisors'
boxes 	is 	less a burden on 	the 	campus mail 	system, 	since no
processing 	or 	sorting 	is 	required 	at 	the central mail 	location,
than 	is the case with stamped, U.S. mail.
Local 	371 	has 	some 	alternative 	means 	of contact 	with 	its
members. 	It 	can get a 	computer 	listing of custodians 	and 	their
departments 	from 	the University 	and 	reach 	them by U.S. 	mail.
Employee 	organizations may 	reserve 	University 	rooms 	for
meetings. 	It may post notices on 	some 45 	bulletin boards 	in
custodial offices. 	There also 	is 	a University 	"poster 	route"
by which, 	for 	a fee, 	the University will post 	notices on 66
bulletin boards 	throughout 	the 	campus. 	Finally, 	employee
organizations 	are 	permitted 	to 	leaflet 	outside 	campus 	buildings
or 	in parking 	lots.
ISSUE
Did 	the University violate Government Code 	section 3571(a),
(b) 	or 	(d) 	by not permitting Charging Party to use 	its 	internal
mail 	system 	for 	delivery of 	unstamped, 	organizational
literature?
7

DISCUSSION AND CONCLUSIONS OF LAW
Section 3568 provides that:
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.
In a decision 	interpreting an almost 	identical provision in
the Educational Employment Relations Act 	(section 3543.1(b) 	of
"EERA"3), the PERB held that the phrase, "other means of
communication," 	includes school district mail systems.
Richmond Unified School District 	(8/1/79) 	PERB Decision
No. 	99. 	Interpreting basically similar 	statutory language
under EERA, 	the Richmond decision serves as precedent in
interpreting 	section 3568 of HEERA. 	Professional Engineers in
California Government 	(PECG) 	v. 	State of California 	(3/19/80)
PERB Decision No. 118-S, at p. 11.
The University argues, however, that the circumstances of
the case are distinguishable and thus the Richmond holding 	is
inapplicable.
3. 	Government Code section 3540 et seq. 	The only difference
between the two statutory provisions, of which the University
makes a point but the hearing officer 	finds to be 	irrelevant,
is that in section 3568 of HEERA the phrase "subject to
reasonable regulations" comes at the beginning, rather than in
the middle as in section 3543.l(b) 	of EERA.
8

First, 	the University 	argues 	that 	there 	is 	no
longstanding 	past 	practice 	of 	allowing 	employee 	organizations
to 	use 	the mail 	system as 	in Richmond. 	However, 	in Richmond
the 	PERB 	expressly 	stated:
PERB's 	finding 	that 	section 	3543.l(b) 	authorizes
organizational access 	to 	school mail 	systems 	is
not 	limited 	to 	those 	situations where past
practice 	by 	the 	District has 	"opened 	the 	forum"
. 	. 	.. 	[T]his Board concludes 	that a "past
practice" 	limitation would be 	contrary 	to
legislative 	intent. 	The 	statute 	does not 	restrict
organizational 	access 	to 	any 	communication medium
on the basis 	of past practice, 	but 	simply permits
use of 	"other means 	of 	communication" with only
the 	qualification 	that 	access 	be 	subject 	to
"reasonable 	regulation." 	(Footnote 	omitted.)
(Richmond Unified 	School District, 	supra, 	at
p. 	13.)
The 	University 	next 	argues 	that 	unlike 	the 	school 	mail 	systems
at 	issue 	in Richmond, 	the University 	internal mail 	system 	is
not 	an 	effective 	or 	efficient 	means 	of 	communication 	with
employees. 	The 	University cites 	examples 	in 	the 	record 	of
delays 	in processing mail 	by 	the 	University.
The 	fact 	of 	the matter 	is 	that 	delays 	in 	the 	University's
internal 	mail 	system occur 	mainly 	at 	the 	central 	distribution
center 	where 	incoming mail 	is 	sorted 	for 	delivery 	to 	campus
locations. 	Local 	371's 	practice 	has 	been 	to 	bypass 	the 	central
location 	and 	instead 	place 	its 	communications 	directly 	in
supervisors' 	boxes 	for 	distribution 	to custodians 	at 	the
various 	campus 	buildings. 	There 	is 	no evidence 	in 	the 	record
9

that 	this 	"shortcut" 	method of 	distribution 	is 	not 	efficient
and 	effective.
Furthermore, 	the PERB's 	holding 	in Richmond 	is 	not 	premised
on 	the 	relative 	efficiency of 	internal 	school mail 	systems.
Rather, 	at 	the outset 	it 	is 	unqualifiedly stated:
As a 	threshold matter, 	PERB finds 	the
Legislature 	intended 	to 	include 	use 	of
internal 	school mail 	systems 	as 	one of 	the
employee 	organization 	access 	rights
authorized 	by 	section 	3543.l(b) 	of EERA.
But, 	the University argues, 	if supervisors must deliver
employee 	organization 	literature, 	their 	supervisory 	duties 	will
be 	disrupted 	and 	an 	anomalous 	situation will 	be 	created 	in
which 	supervisors, 	some of 	whom may belong 	to competing
organizations, 	would be providing 	a 	"leafletting 	service" 	for
rival 	employee 	organizations.
The 	University's 	position 	that 	custodial 	supervisors 	would
be 	unduly 	burdened 	by 	having 	to 	deliver 	organization mail 	is
speculative 	at best. 	If not permitted, 	much of this mail
probably would 	be 	sent 	by U.S. 	mail 	and 	be 	delivered 	by
supervisors 	anyway. 	Before 	the 	advent of HEERA, 	these 	same
supervisors 	distributed 	employee 	organization 	literature 	and
there 	is no evidence 	it was burdensome. 	In fact, 	the manager
of 	custodial 	services was of 	the opinion 	that 	it 	had 	not 	been
burdensome 	in 	the past.
The 	argument 	that 	supervisors 	may 	belong 	to 	competing
10

employee organizations 	is unpersuasive. 	The same situation
exists with 	respect 	to delivery of stamped organizational mail
which supervisors would continue 	to distribute. 	Furthermore,
there 	existed the same possibility 	in the Richmond case of
competing loyalties among 	the employees who delivered
organization mail to school sites, 	but this possibility did not
appear 	to trouble the PERB. 	It 	is further 	noted that under
sections 3580-3581.7, 	although supervisors under HEERA may
belong 	to the same employee organization as do employees 	they
supervise, 	they are precluded from participating 	in
representational activities of nonsupervisory employees, which
fact serves 	to minimize their 	interest 	in organizational
literature 	they might deliver 	to nonsupervisory custodial
employees.
The University next argues that 	if 	it 	is required to allow
employee organizations to use 	its internal mail system, 	under
the 	"opening of the 	forum principle"4 it would have to
similarly open use to all other 	kinds of groups 	"whose goals
are not essential to the business of the University," 	thereby
further 	burdening 	its 	internal mail system. 	Other 	than the
fact 	that 	the University could present 	no evidence 	beyond mere
4See Danskin v. 	San Diego School District 	(1946) 	28
Cal.2d 536 [171 P.2d 885]; Wirta v. Alameda-Contra Costa
Transit District 	(1967) 	68 Cal.2d 51 	[64 Cal.Rptr. 	430];
Stanson v. Mott 	(1976) 	17 Cal.3d 206 	[130 Cal.Rptr. 697].
11

speculation 	that 	its mail 	system would 	be 	overburdened 	by
employee 	organization 	use, 	the 	simple 	answer 	to 	this 	argument
is 	that 	if 	employee 	organizations 	are 	interpreted 	to have 	a
statutory 	right 	under 	section 	3568 	to 	use 	the 	University's 	mail
system, 	that 	right 	is 	not 	subject 	to divestment 	just 	because
its 	enforcement 	might 	collaterally create 	the 	same 	right 	for
other 	groups. 	Further, 	there would 	seem to be a 	rational basis
for 	the 	University 	to 	distinguish 	communications 	to employees
concerning 	their 	working 	conditions 	and 	employment 	relations
with 	the 	University 	from communications 	from other 	groups 	with
no University 	connection.
The 	University 	next 	contends 	that 	employee 	organizations
have many 	alternative methods 	of 	communicating 	with 	employees,
thus 	the 	prohibition of 	unstamped mail 	is 	a reasonable
regulation of 	the 	use of University mails 	under 	section 	3568.
The 	same 	alternatives 	presumably 	existed 	within 	the 	school
districts 	involved 	in the Richmond 	case, 	but 	the PERB
nevertheless 	found 	similar 	restrictions 	on 	use 	of 	the 	school
mail system to be 	impermissible. 	Certainly, 	the 	employee
organizations 	in Richmond 	had 	a 	statutory 	right 	under 	section
3543.l(b) 	of EERA to use 	bulletin 	boards. 	"Leafletting"
employees 	on 	nonwork 	time 	also must 	be 	permitted. 	Republic
Aviation Corp. 	v. NLRB 	(1945) 	324 U.S. 	793 	[16 LRRM 620]; 	Los
Angeles 	Teachers 	Union v. 	Los Angeles 	City Board 	of 	Education
12

(1969) 	71 Cal.2d 551, 	560 	[78 Cal.Rptr. 	732]. 	Also, as in the
present 	case, 	in Richmond 	the 	employee 	organizations were
permitted 	to 	distribute 	communications 	themselves 	to 	their
members' worksites. 	Richmond, supra, at pp. 7-8.
The 	only alternative 	available 	to Local 	371 	which 	arguably
was 	unavailable 	to 	the 	employee 	organizations 	in Richmond 	is
the 	right 	to 	communicate 	with 	employees 	at 	their 	worksites 	via
stamped U.S. 	mail.5 But 	the 	fact of 	the matter 	is 	that both
stamped 	and 	unstamped mail 	get 	treated 	the 	same 	way 	in 	the
University's mail 	system. 	The 	burden on 	the University 	is 	the
same 	in either 	case. 	The 	only difference 	is 	that Local 	371
would 	be 	required 	to pay U.S. 	postage 	for 	its mailings.
Additionally, 	if Local 	371 were 	allowed 	to continue 	its past
practice 	of 	bypassing 	the 	University's 	main mail 	distribution
center 	and 	instead 	placing 	its 	communications 	directly 	in
custodial 	supervisors' 	boxes 	for 	distribution at custodial
work sites, 	the 	University's 	mail 	system would be less 	burdened
than 	if 	it had 	to handle 	the mail 	as U.S. 	postage 	in 	its main
distribution 	center.
Given 	these circumstances, 	it can hardly be 	said 	that 	the
University's 	present policy 	is 	a 	reasonable 	regulation of 	the
5In	Srn 	fact, 	there 	is 	no 	indication one way or 	the other 	in
Richmond 	as 	to 	whether 	employee 	organizations 	could 	communicate
with employees 	at 	their 	worksites 	via U.S. 	mail.
13

use of the mail system. 	Furthermore /
, 	as the PERB said in
Richmond, supra, at p. 28, fn. 11, "The existence of an
alternative means of distribution does 	not absolve 	the
districts of responsibility . 	. 	. 	," nor is there any "valid
school 	interest to justify the distinction."
The University further contends, however, 	that it must
require employee organizations 	to stamp their mail 	in order 	to
comply with the 	federal Private Express Statutes and
Regulations.6 But as 	the PERB stated with respect to a
similar defense raised in Richmond, supra, 	the PERB is
empowered 	to 	interpret and enforce the provisions of HEERA.
Whether 	there 	is a conflict between section 3568 of HEERA and
the federal law is a matter 	for a different tribunal, 	and not
resolvable 	in an unfair practice charge brought under HEERA.
Cf. Richmond, supra, at p. 14, fn. 6.
Finally, 	the University argues 	that 	insofar as the unfair
practice charge alleges that prohibition of Local 371's use of
the internal mail system was a unilateral change, 	the charge 	is
barred 	by the 	six-month 	statute of 	limitations 	in section
3563.2(a) 	since the University's prohibition against employee
organization use of the mail system dates back over 	13 years.
6l8 U.S.C, sec. 1693 et seq., 39 U.S.C, sec. 901 et seq.;
44 C.F.R, sec. 310 et seq.
14

However, 	this 	proposed decision 	does 	not 	rest on 	the 	basis
that 	the University committed 	an 	unlawful, 	unilateral change.
Indeed, 	Local 	371 does 	not 	include 	in 	its 	charge 	an allegation
that 	the University's denial of 	access 	to 	the mail 	system
violated 	Local 	371's 	right 	to negotiate 	under 	section 	3571(c).
Rather, 	Local 371's 	statutory right of 	access 	under
section 3568 	is 	at 	issue. 	Furthermore, 	this 	statutory right
did not exist 	until July 1, 	1979, 	the effective date of HEERA,
and 	the 	charge 	was 	filed 	within 	six months 	thereafter, 	on
November 	16, 	1979. 	Under 	the University's 	theory, 	the 	six
months 	limitation 	period 	would 	have 	run 	more 	than 	12 	years
before 	the 	statutory right 	accrued, 	and Local 371, 	no matter
how diligent, 	would 	never 	be 	able 	to 	file 	a 	timely unfair
practice 	charge 	to protect 	its 	statutory 	right. 	Such 	an
inequitable 	result 	will 	not 	be 	inferred 	here. 	Cf.
Communication Workers v. 	NLRB 	(2d Cir. 	1975) 	520 F.2d 411
[89 LRRM 3028, 	3031].
Conclusion
Having 	found 	the 	University's 	attempts 	to 	distinguish 	the
present 	situation 	from 	the 	PERB's 	Richmond 	precedent 	to 	be
non-meritorious, it 	is 	concluded 	that 	Local 	371 	is 	statutorily
entitled 	under 	section 	3568 	to 	use 	the University's 	internal
mail 	system. 	It 	follows 	that 	the University violated
section 3571(b) 	by denying Local 	371 	its 	right 	to use 	this
internal mail 	system.
15

In 	addition, 	some 	harm occurred 	to 	custodial employees'
statutory 	right 	under 	section 	3565 	to participate 	in 	employee
organization 	affairs 	by 	receiving 	communications 	from
Local 371. 	Accordingly, as in Richmond, supra, 	at pp. 	29-30, 	a
violation of 	section 3571(a) 	also 	is 	found.
As 	to the 	alleged violation of 	section 3571(d), 	as 	in
Richmond, 	supra, 	at pp. 	30-1, 	there 	is no evidence that the
University 	attempted 	to exert 	control over 	Local 	371 	or
undermine 	its 	support as 	an entity. 	Thus, 	the alleged
section 	3571(d) 	violation 	is 	dismissed.
REMEDY
Section 	3563.3 	gives 	the PERB broad 	powers 	to 	remedy 	unfair
practices, 	specifically 	including 	the 	power 	to 	issue 	cease 	and
desist 	orders.
Since 	it 	has 	been 	found 	that 	the University 	unreasonably
denied Local 	371 	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 	at 	the 	University of
Berkeley campus. 	As 	in Richmond, 	supra, 	the cease and desist
order 	will 	apply 	in 	favor 	of 	all 	employee 	organizations 	as 	well
as Local 371.
In addition, 	it 	is 	appropriate 	that 	the University be
required 	to post 	a notice 	incorporating 	the 	terms 	of 	the order o
Posting of 	such notice will 	provide 	employees 	with notice 	that
the University has 	acted 	in an unlawful 	manner 	and 	is 	being
required 	to 	cease 	and desist 	from such unlawful 	activity. 	It
16

effectuates 	the purposes 	of the 	HEERA that 	employees 	be 	informed
of 	the 	resolution 	of 	this 	controversy 	and will 	announce 	the
University'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].
PROPOSED 	ORDER
Based 	on 	the 	foregoing 	findings 	of 	fact, 	conclusions of
law, 	and 	the 	entire 	record 	in 	this 	case, 	it 	is 	found 	that 	the
Regents 	of 	the 	University 	of 	California 	violated 	Government
Code 	section 	3571(a) 	and 	(b) 	by denying 	employee 	organizations
access 	to 	the University's 	internal 	mail 	system on 	the 	Berkeley
campus. 	Therefore, 	it 	is ordered 	that 	the University shall:
A. 	CEASE AND DESIST 	FROM:
1. 	In violation of Government Code section 3571(b),
unreasonably 	denying 	employee 	organizations 	access 	to 	its
internal mail 	system 	for 	the 	purpose 	of 	communicating 	with
employees 	at 	its Berkeley 	campus;
2. 	In violation of Government Code 	section 3571(a),
interfering 	with 	employees' 	right 	to 	participate 	in 	employee
organization 	affairs 	by 	receiving 	communications 	from 	such
organizations•
17

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
1. 	Within 	seven 	days 	after 	this 	proposed 	decision 	and order
becomes 	final, 	post 	copies 	of Appendix "A" 	attached hereto 	for
forty-five 	consecutive 	calendar days 	at 	its 	headquarters 	office
and 	in all 	locations 	at 	the Berkeley campus where notices 	to
employees 	are 	customarily posted;
2. 	At 	the 	end of the posting period, 	notify 	the 	San
Francisco 	Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board 	in writing of 	the 	actions 	it 	has 	taken 	to 	comply with 	this
Order.
The 	alleged 	violation 	of 	Government 	Code 	section 	3571(d) 	is
hereby 	dismissed.
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	will
become 	final on 	July 	7, 	1980 	unless 	a 	party
files 	a 	timely 	statement 	of 	exceptions 	and 	supporting 	brief
within 	twenty 	(20) 	calendar 	days 	following 	the 	date 	of 	service
of 	this 	decision. 	Such 	statement 	of 	exceptions 	and 	supporting
brief 	must 	actually 	be 	received 	by 	the 	Executive 	Assistant 	to
the Board 	at 	the 	headquarters 	office 	in 	Sacramento 	before 	the
close of business 	(5:00 	p.m.) 	on 	July 	7. 	1980 	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
18

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: 	June 17, 	1980
GERALD A. 	BECKER
Hearing 	Officer
19

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
WILLIAM H. 	WILSON,
Charging 	Party,
v.
UNIVERSITY OF CALIFORNIA
(BERKELEY),
Respondent.
Case No. SF-CE-4-H
PERB DECISION NO. 	183a-H
REMAND
On March 18, 	1983 	the Public Employment Relations Board
(hereafter 	PERB) 	remanded 	the 	above-referenced 	case 	to 	the
Chief Administrative Law Judge 	to conduct a 	hearing 	for 	purposes
of 	taking 	additional evidence 	and 	preparing 	findings of 	fact 	and
conclusions of 	law based 	on 	that 	evidence.
Pre-hearing 	conferences were 	held 	on March 	30 	and 	April 	6,
1983. 	A formal hearing was held April 8, 	1983. 	The 	transcript
was 	prepared 	and 	briefs were 	received. 	The 	case was 	submitted
for decision on May 10, 	1983.
In 	its 	remand decision 	the 	PERB 	instructed 	the Chief
Administrative Law Judge 	to solicit 	evidence as 	to the 	following
questions 	but not 	limited 	thereto:
1. 	To what extent 	are 	the materials charging party seeks 	to
distribute 	"letters" 	within 	the meaning of 	the 	federal postal
regulations?
)
)
)
)
)
)
)
)
)
)
_____________ )

2. 	What compensation, 	if any, does 	the University receive
for 	delivery of 	employee 	organizational materials?
3. 	What relationship, 	if any, exists between the
University's mail 	system and 	United 	States 	postal 	routes?
4. 	Does 	the University utilize 	its mail 	system to
disseminate management material 	pertinent 	to 	employer-employee
relations?
5. 	Does 	the University permit 	the 	use of 	its mail 	system
by 	charitable 	and 	other 	nonemployee 	organizations?
6. 	What burden, 	if any, would be placed on the University's
mail system 	it 	if were made available 	to employee organizations?
At 	the 	hearing 	the 	parties 	presented 	evidence only on 	the
issues 	raised 	by 	the Board 	in 	its 	remand 	order. 	Based 	on 	this
evidence, 	the 	undersigned makes 	the 	following 	findings of 	fact
and 	conclusions of 	law.
FINDINGS OF FACT
Question #1. 	The document which gave rise 	to this charge
was 	a one-page 	notice 	regarding 	a union 	nomination meeting.
Charging party, 	however, 	also seeks 	to send 	the following
through 	the campus mail 	system.
a. 	General 	notices of 	union activities 	including
meetings, 	meet and 	confer 	sessions and other 	concerted
activities.
22

b. 	Union publications 	including newsletters 	having 	to
do 	with 	union-related activates.
c. 	Materials concerning 	Local 	371's position on 	the
benefits of 	collective bargaining 	and 	the 	rights 	of 	employees
protected 	under 	the 	collective 	bargaining 	laws, 	including 	union-
related 	election materials, 	information and 	advice.
d. 	General notices of changes or 	modifications 	in
University rules, 	regulations 	and 	benefits 	affecting members of
Local 371.
e. 	Other materials 	generally concerned 	with 	the
business of Local 371 and members 	thereof.
These materials would 	be addressed 	to 	individual 	employees
at particular locations. 	It is not contemplated, 	however, 	that
Local 371 would 	use 	the University mail 	to 	send 	to 	individual
employees 	communications 	which 	are 	concerned 	only with 	business
of 	those 	individual employees 	unless 	there was 	no other 	means
of 	contacting 	them.
Question #2. 	The University has 	consistently 	refused 	to
deliver employee organization materials, 	therefore, 	no new
evidence was 	received 	regarding 	compensation 	for 	delivery of
such materials.
Evidence was 	received 	regarding 	charges 	imposed 	by 	the
University 	upon 	various University departments 	and 	units 	for
use of 	the mail 	system. 	In this 	regard 	the Berkeley campus 	is
unique 	to 	the University system. 	At every campus except
w	3

Berkeley,1 units or departments 	that 	utilize 	the 	intra-
campus2 mail 	system are 	recharged 	for 	that 	service. 	There 	is
no 	recharge 	at Berkeley. 	The 	recharge system at other 	campuses
is as 	follows. 	At some campuses each unit or department 	that
receives 	intra-campus mail gets 	charged 	a monthly 	rate,
depending upon volume. 	For example, 	each unit 	that receives
from 0 	to 500 pieces of mail per day would 	be charged 	a certain
monthly rate, 	while those 	receiving over 	500 pieces per day
would 	be 	charged 	a higher monthly 	rate. 	Some 	campuses measure
volume in terms of outgoing mail, others by incoming mail, while
still others use a combination of both. 	Some campuses measure
volume by 	the weight of the mail 	rather 	than 	the number 	of
pieces of mail. 	Another method 	is 	to charge a 	"drop charge."
This 	is a flat 	fee per month just 	for 	having mail dropped 	within
the department. 	This has 	nothing 	to do with 	the volume of mail
handled 	for 	that department.
At 	the 	time of 	the hearing 	the 	entire cost of handling
1 The 	record 	was 	unclear 	what 	recharges 	were made 	at 	the
Lawrence Livermore National Laboratory 	(hereafter LLNL).
2intra-campus 	mail 	is 	mail 	delivered 	through 	the internal
campus mail system. 	This requires no U.S. 	postage. 	This
should 	be distinguished 	from mail 	being 	sent outside 	the 	campus
confines known as 	inter-campus or outside mail. 	This
inter-campus or outside mail does require U.S. 	postage. 	On the
Berkeley campus 	all mail being 	sent 	to other Northern
California campuses 	is delivered 	via University couriers 	and 	is
therefore 	still considered 	intra-campus mail, 	not 	requiring
U.S. postage.
,
4

intra-campus mail on 	the Berkeley campus was 	funded 	by general
state 	funds 	through 	the mail division's 	annual budget.
Marvin Eckard, the manager 	of 	the mailing division 	at 	the
Berkeley campus, 	testified 	that he was 	in the process of
developing 	a method 	of charging departments 	but 	that 	nothing
had 	yet been 	instituted 	on 	the Berkeley campus.
On all campuses, 	including Berkeley, 	the user of 	inter-
campus or outside mail requiring U.S. 	postage 	is charged 	for
the postage plus a surcharge. 	All users 	are 	also charged 	for
special 	services 	such 	as 	bulk processing.
Question #3. 	Evidence was 	received 	regarding overlap of
-postal 	routes 	and 	the University mail 	system on 	the Berkeley
campus and 	LLNL.
On the Berkeley campus, 	the U.S. 	postal service picks up
and delivers directly 	to over 	50 locations. 	The University
mail 	system also 	services 	each of 	those 	locations 	served 	by 	the
postal 	service. 	The University system delivers mail 	to
approximately 	100 	additional 	locations which do 	not 	receive
direct delivery from the postal 	service. 	Maps outlining 	the 	two
delivery routes demonstrate 	that 	the University, 	by necessity,
utilizes most of 	the 	same 	surface 	streets within and 	around 	the
University which 	are 	utilized 	by 	the 	postal 	service.
Regarding 	the LLNL, 	there was 	testimony that 	the postal
service does 	not deliver 	to any location within 	the 	secured
area of 	the Laboratory. 	There was also 	testimony 	that 	a 	small
5

percentage of LLNL employees work at 	sites outside 	the 	secured
area. 	Mail 	to 	those 	sites would 	therefore 	be carried on
surface 	streets. 	There was 	no evidence 	showing 	those 	surface
streets were 	also used 	by 	the postal 	service 	for delivery of
mail.
Question #4. 	The parties 	stipulated 	that certain materials
were 	sent 	by management 	to 	rank-and-file employees via 	the
internal mail 	system on 	the Berkeley campus. 	Among 	those
materials was 	a publication of 	the Berkeley campus personnel
office entitled 	"U.C. 	Employee." 	Within that publication 	there
were, 	among other 	things, 	articles regarding bargaining units,
PERB elections, 	improvement 	to personnel services offered,
benefits increases, job freezes, salary increases, vacations,
and 	special performance awards. 	Many of 	these 	articles 	not
only 	report objective facts 	but also offer 	the views of 	the
personnel office on the 	subject.
Charging party also entered 	evidence as 	to 	the LLNL. 	At
that 	site 	a publication 	titled 	"Tuesday A M Update" 	is
distributed 	via 	the mail 	system. 	Within 	that management
publication were 	articles 	regarding 	bargaining 	units,
collective bargaining 	training of 	supervisors, 	public 	sector
strikes, 	amendments to unit petitions, 	summaries of grievance
cases, PERB elections, 	union authorization cards, declining
union membership, 	unfair practice charges, 	and many others
offering management views 	on employer-employee 	relations 	issues.
6

Question #5. 	The only example of charitable and 	other
non-employee 	organization use of 	the mail 	system on 	the
Berkeley campus was 	the United Way campaign discussed 	in 	the
earlier 	administrative 	law judge's decision. 	The only new
evidence 	regarding 	this 	issue was 	that 	in 1982 	the 	procedure
for distributing 	the United Way letters 	and 	materials 	was
changed 	so 	that 	they are now distributed 	to United Way
representatives 	in a group meeting. 	The letters and materials
are 	then hand-carried 	by 	representatives 	to 	their 	departments
and 	then distributed 	to employees. 	Representatives who cannot
attend 	the meeting are 	asked 	to pick 	up their department's
letters 	and materials 	from a central office. 	Those 	that 	are
not picked 	up are 	then 	sent 	to 	the United Way 	representatives
through the campus mail.
Charging 	party offered 	evidence 	from 	the 	LLNL 	to 	show 	that
in November 	1979 	an organization called 	the Lawrence Livermore
Laboratory Women's Association 	(hereafter Women's Assoc.) 	was
allowed 	to send 	notices of a meeting 	and 	a newsletter 	through
the 	internal mail system at LLNL. 	Additionally, 	in
February 1983 	the Bank of America was allowed 	to use 	the mail
system 	to distribute 	instruction 	and 	application 	information
for 	an 	automated 	teller 	which 	had 	been 	installed 	at 	the LLNL
facilities. 	The 	information 	from the 	bank was preceded 	a day
earlier 	by 	an 	administrative memo 	from 	the LLNL business
services 	unit 	explaining 	that 	an 	automated 	teller 	had 	been
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installed 	on the 	facility for 	use by LLNL employees. 	The memo
also 	informed 	employees 	that 	representatives 	from 	the 	bank would
be 	at LLNL 	for 	the 	following week 	to 	answer 	questions 	and 	assist
employees with 	the machine operation.
Charging 	party also 	introduced 	an October 	1979 	memo 	from 	the
LLNL compensation/benefits 	unit. 	That memo 	notified 	employees
of 	services offered 	employees 	by Crocker Bank. 	The memo
instructed 	employees 	that 	further 	information was 	available 	at
the employee benefits 	section.
Marvin Eckard 	testified 	that 	if 	the materials 	from the 	bank
and 	the Woman's Assoc, 	had 	been mailed 	at the Berkeley campus
they would 	not have 	been delivered 	because 	it would 	have
constituted 	a 	violation of 	University policy.
Question #6. 	To prove 	that distributing 	employee
organization mail would 	create a burden, 	the University offered
testimony of Marvin Eckard. 	This, testimony reflected 	budget
cuts, 	reductions 	in workforces and 	increases 	in the amount of
mail 	required 	to be processed.
Eckard 	testified 	that 	in his 	opinion 	the 	number 	of mailings
of 	employee organizations would 	increase 	if organizations 	had
free access 	to the system, 	thus putting a greater 	burden on the
system. 	This was supported by testimony of Calvin Andre, 	a
witness 	for 	the charging party. 	Andre 	testified 	that his
organization would 	utilize 	the system more heavily 	if 	it didn't
have 	to pay postage.
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Eckard did admit, however, 	that if U.S. postage was affixed,
the University would 	have 	no choice 	but 	to accommodate 	the
employee organization mail.
CONCLUSIONS
Question #1. 	Federal postal regulations generally define a
"letter" 	to be a message directed 	to a specified person or
address which 	is 	recorded 	in or 	on 	a 	tangible 	object.3 There
are, however, exceptions to this definition. 	Newspapers,
periodicals 	and 	signs 	or 	posters which are primarily 	intended
to be posted 	for 	reading 	by more 	than 	the addressee 	are 	not
considered 	letters.
Although 	there may be occasions where 	the charging party's
materials 	fall within an exception 	to 	the definition of 	letters,
the majority of 	the mailings would 	be addressed 	to 	individual
employees 	and 	would 	therefore 	be considered 	letters within 	the
postal regulations.
Question #2. 	Because 	the University has 	refused 	to deliver
employee 	organization materials 	it has 	received 	no compensation
for doing 	so. 	At Berkeley where 	the 	instant case arose,
University users 	are not charged 	for 	intra-campus mail service.
If inter-campus or outgoing mail requires U.S. postage, 	the
users 	are charged 	for 	the postage plus 	surcharge. 	Users 	are
1
339 CFR Part 310, 	section 310.1.
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also charged 	for 	special services 	such 	as 	bulk processing. 	At
every other campus in the system, 	and possibly at LLNL,4
University users of 	the 	system 	are 	charged 	for 	the 	intra-campus
mail service.
Question #3. 	Postal regulations define postal routes 	in
part as 	"routes on which mail 	is carried 	by the postal
n	
n5
service." 	This 	includes 	public 	roads 	and 	letter 	carrier
routes 	as 	established 	for 	the 	collecting 	and delivering of
mail. 	The University and U.S. 	postal service pick 	up and
deliver 	to 50 	identical locations 	creating virtually complete
overlaps of 	routes 	used. 	Although 	the University services an
additional-100 locations, 	the routes used also substantially
overlap U.S. postal routes.
Question #4. 	As also 	found 	by the administrative 	law judge
in the original hearing, 	articles and 	newsletters disseminated
to employees 	by management via 	the University mail 	system do
include management positions on 	issues pertinent 	to
employer-employee 	relations.
Question #5. 	On the Berkeley campus, 	the University does
not allow use of 	the 	internal mail system by charitable or
other 	non-employee organizations. 	The only evidence of 	this
4Eckard 	was 	unaware of 	the practice 	at LLNL.
539 C.F.R, sec. 310.l(d).
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ever 	happening was when 	the United Way was 	allowed 	to 	use 	the
mail 	system under 	the direct 	sponsorship of 	the 	chancellor's
office.
At LLNL, 	the University has 	allowed 	outside organizational
use of 	the mail 	system as 	evidenced 	by the 	1983 mailing of 	the
Bank of America and 	the 	1979 mailings of 	the Women's Assoc.
There was 	no 	testimony 	that 	these mailings were 	under 	the
direct sponsorship of 	the University. 	It is 	therefore 	found
that at LLNL 	the University has, 	on at least three occasions
between 1979 	and 	the present, 	allowed 	use of 	the mail 	system by
non-employee 	organizations. 	The 	1979 mailing 	regarding Crocker
Bank was 	sent by a department of LLNL, 	and 	therefore 	is not
evidence of 	use of 	the mail 	system by 	an outside organization.
Question #6. 	The picture painted 	by Eckard 	generally
supports 	a 	finding 	that any 	increase 	in mail would 	place
additional burden on 	the system. 	Yet an 	increase 	in employee
organization mail 	is no more burdensome 	than an 	increase 	in
mail sent by any University department. 	Furthermore, 	if U.S.
postage were affixed 	all of 	the employee organization mail would
be accommodated. 	It 	is 	therefore concluded 	that none of 	the new
evidence 	demonstrated 	that 	employee 	organization mail 	would
unduly burden 	the mail 	system.
These 	recommended 	findings of 	fact 	and 	conclusions of 	law
regarding 	the 	new 	evidence 	submitted 	are 	being 	forwarded
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directly to the Board 	itself 	for 	its consideration, 	together
with 	the 	existing 	record.
DATED: 	June 2, 	1983 JAMES W. 	TAMM
Administrative 	Law Judge
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