Regents of the University of California (American Federation of State, County and Municipal Employees) * * * VACATED by Regents of University of California v. PERB (1986) 177 Cal.App.3d 648 (PERB 0504H)

VACATED by Regents of University of California v. PERB
(1986) 177 Cal.App.3d 648
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
AMERICAN FEDERATION OF STATE, 	COUNTY
AND MUNICIPAL EMPLOYEES, 	AFL-CIO,
Charging 	Party,
v.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case 	No. 	LA-CE-94-H
PERB 	Decision 	No. 	504-H
April 	23, 	1985
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Appearances; 	Reich, 	Adell and Crost by Glenn Rothner, 	Attorney
for 	the American Federation of 	State, 	County 	and Municipal
Employees, 	AFL-CIO; 	Edward M. 	Opton, 	Jr., 	Attorney for the
Regents 	of 	the 	University of 	California.
Before Hesse, 	Chairperson; 	Jaeger and Morgenstern, Members.
DECISION
JAEGER, 	Member: 	The University of California 	(UC) 	excepts
to 	the 	attached proposed decision 	finding 	that 	it 	violated
section 3571(a) 	and 	(b) 	and 	section 	3568 of 	the Higher
Education 	Employer-Employee 	Relations Act 	(HEERA or 	Act) l by
denying 	the American Federation 	of 	State, 	County 	and Municipal
Employees, 	AFL-CIO 	(AFSCME) 	access 	to banner 	space 	located on
University 	property.
In 	its exceptions, 	the University 	argues 	that 	the
administrative 	law judge 	(ALJ): 	overemphasized 	the exceptions
to 	the official 	use of 	the banner 	space; 	mischaracterized
1l 	HEERA is codified at Government Code 	3560 	et. 	seq.
__)

AFSCME's 	efforts 	to communicate 	with 	the 	employees 	(implying 	by
the use of 	the word 	"attempted" 	that 	its 	efforts were
unsuccessful); 	failed 	to recognize UC's 	implied 	"sponsorship"
of AFSCME 	if 	it permitted AFSCME to 	use 	the 	banner 	because 	that
space 	is 	known as official University space, 	and 	failed 	to
recognize 	that 	the 	University 	is 	entitled 	to 	some method 	of
communicating 	which 	clearly 	distinguishes 	its 	own
communications 	from those 	of others. 	UC further 	argues 	that
its 	Guidelines 	make 	a 	reasonable 	distinction 	between 	official
and non-official communications, 	and 	that AFSCME 	had other
means 	of 	communication available 	to 	it.
DISCUSSION
Although 	I 	ultimately 	agree 	that UC violated 	section
3571(a) 	and 	(b) 	of the Act, 	I do not subscribe 	to the ALJ's
apparent 	conclusion 	that 	an employer may deny access 	to 	its
facilities only 	if 	such access would 	result 	in 	"disruption" 	of
its mission. 	The cases 	relied 	upon by 	the ALJ 	in 	reaching 	this
conclusion dealt primarily with 	general 	access 	to 	the
employer's 	property 	and 	distinguished 	between 	those
circumstances 	where 	access 	was 	likely 	to 	disrupt 	operations 	and
those 	where 	access 	would 	have 	no 	such effect.
Here, 	the question is 	not 	simply one of general 	access 	to
University grounds 	or 	facilities, 	but whether 	an employer 	is
entitled 	to 	reserve 	to 	itself 	the 	exclusive 	use 	of 	a 	specific
means of communication. 	It is, 	to me, 	beyond dispute that an
22

employer 	has 	such a 	right. 	For example, 	an employer may have
its own newsletters, 	bulletins, 	and bulletin boards, 	and need
not place 	these means of communication 	at 	the disposal of
employee 	organizations.2 Here, 	the University claims 	the
right to 	set up an exclusive means of communication, 	banners,
for 	its own or official use.
The question raised by the evidence, 	however, 	is whether
the 	University did 	indeed 	limit 	the 	use 	of 	banner 	space 	to
official 	purpose 	or 	whether, 	by discriminating 	against AFSCME,
it 	unlawfully 	denied 	that 	organization 	its 	section 	3568
rights. 	In 	some 	instances 	the pertinent 	evidence 	is
ambiguous. 	In other 	instances, 	it simply runs against the tide
of UC's 	legal claim.
It 	is 	uncontested 	that AFSCME was given permission 	to 	use
the 	banner 	space 	until Greg 	Kramp, 	UC's 	labor 	relations
manager, 	voiced 	his objections 	in a letter 	to the 	approving
office. 	His 	specific 	reason was 	his view that AFSCME's use 	of
the 	space 	would 	run 	against 	UC's 	no-representation 	campaign,
although 	he 	also 	expressed 	concern 	over 	a 	possible 	unfair
practice 	charge 	based 	on 	supposed 	support 	of 	one 	organization
over 	another. 	It was only after 	this 	letter was 	received 	that
2 The 	employer's 	right 	to 	such means of communication 	is
separate 	and 	distinct 	from 	those 	access 	rights 	granted 	employee
organizations 	by 	section 	3568.
w3

UC 	decided 	that 	the 	Guidelines 	precluded AFSCME's 	use 	of 	the
space.
The 	credibility 	of 	this 	explanation 	and 	of 	UC's 	disclaimer
of 	Kramp's 	letter 	as 	the 	basis 	for 	its decision 	to 	rescind 	the
permit, 	suffers when other 	evidence 	is 	reviewed. 	Three other
organizations 	used 	the 	banner 	space: 	Israel Act 	Committee
(which no witness was able 	to define with certainty, 	but which
was clearly not an 	"affiliated" 	organization); 	the Gay rights
message; 	and 	a 	fraternity-sponsored 	bike-a-thon 	for 	ataxia.
The University 	refers 	to 	these 	instances 	as 	"aberrations,"
exceptions 	that prove 	the rule. 	But, 	the banners were
displayed 	for 	an appreciable period 	of 	time, 	at 	least 	in one
instance 	for 	as 	long 	as 	two weeks, 	over 	a prominent 	entrance 	to
the campus, 	yet 	there 	is no evidence 	that 	the University
ordered 	them 	removed.
The Board 	has 	held 	that 	a 	regulation 	or 	policy 	which
permits 	some 	outside 	individuals 	or 	organizations 	access 	to 	the
employer's 	facilities 	but 	denies 	such 	access 	to 	employee
organizations 	is 	not 	reasonable 	within 	the meaning 	of 	the 	Act
and 	therefore 	violates 	the 	organization's 	statutory 	right 	of
access.33 In 	light of 	the 	virtually 	identical 	language 	of
3Marin Community 	College 	District 	(11/19/80) 	PERB
Decision No. 	145, 	interpreting section 3543.1 of 	the
Educational Employment Relations Act. 	See also Win. 	H. 	Black
(1964) 	150 NLRB 341 	[57 LRRM 1531].
A4

section 	3568, 	I 	find 	it appropriate 	to apply 	the Marin rule
here.
In summary, 	I conclude 	that the University, 	by denying
AFSCME 	the 	use 	of 	the Westwood-LeConte 	banner 	space 	but
granting 	such 	use 	to 	others 	for 	non-official 	communications,
unreasonably 	denied AFSCME 	its 	right 	of 	access 	granted 	by
section 	3568, 	and 	also denied University 	employees 	the 	exercise
of 	rights 	granted 	them by 	the Act.
Because 	the ALJ properly disposed 	of 	the 	other 	matters 	to
which 	the 	University 	takes 	exception, 	I 	find 	no 	need 	to 	address
them here.
ORDER
Based 	upon 	the entire 	record 	in 	the matter, 	and pursuant 	to
Government Code 	section 	3563.3, 	it 	is hereby ORDERED that 	the
University 	of 	California 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating 	against 	the American 	Federation of
State, 	County 	and Municipal 	Employees 	by 	failing 	or 	refusing 	to
grant 	the 	organization 	reasonable 	access 	to 	banner 	space
located 	at 	the 	intersection of 	LeConte 	Avenue 	and Westwood
Boulevard 	at UCLA; 	and
2. 	Interfering with, 	restraining or coercing
employees 	in 	the 	exercise 	of 	the 	rights 	guaranteed 	to 	them by
HEERA by 	failing 	or 	refusing 	to permit AFSCME 	to 	use 	the
above-cited 	banner 	space.
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS 	ACT:
1. 	Within 	thirty-five 	(35) 	days 	following 	the date
this Decision 	is no 	longer 	subject 	to 	reconsideration, 	prepare
and post 	copies 	of 	the Notice 	to 	Employees 	attached 	as 	an
Appendix hereto, 	for 	at 	least 	thirty 	(30) 	consecutive workdays
in conspicuous places 	at 	those 	locations where notices 	to
employees 	are customarily posted. 	The Notice must 	not 	be
reduced 	in 	size 	and 	reasonable 	steps 	should 	be 	taken 	to 	see
that 	it 	is not defaced, 	altered or 	covered 	by any material.
2. 	Written notification of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall 	be made 	to 	the 	San 	Francisco
regional 	director 	of 	the 	Public 	Employment Relations 	Board 	in
accordance 	with 	her 	instructions.
Member Morgenstern's 	concurrence begins 	on page 	7 	and
Chairperson Hesse's 	dissent begins 	on page 	10.
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Morgenstern, 	Member, 	concurring: 	While I concur with
Member Jaeger's 	majority opinion, 	I 	take 	exception 	to some of
his 	logic. 	I 	fully agree that, 	where adequate means of
communication and access 	otherwise 	exist, 	the 	employer 	may
refuse 	certain 	specific means 	of 	communication 	to employee
organizations. ,1 Member 	Jaeger 	says 	the 	question 	is 	"whether
an employer 	is 	entitled 	to reserve 	to 	itself 	the exclusive 	use
of 	a 	specific 	means 	of 	communication" 	and 	finds 	this 	to be
beyond dispute. 	I 	find 	that 	limiting 	the 	employer's 	use 	of 	the
specific means 	in question to 	its 	own exclusive use, 	if meant
in a literal 	sense, 	is overly restrictive on the employer. 	It
is 	not 	difficult 	to 	envision 	circumstances 	in which an
employer's 	rules 	might properly and 	reasonably allow 	the 	use 	of
a particular 	mode 	of 	communication 	for 	some 	causes 	or
organizations but not others, 	even though employee
organizations 	fall 	in 	the 	latter 	category. 	The 	employer 	and
its employees' 	organizations have a business, 	sometimes
adversarial business, 	relationship. 	Section 3568 does not
require 	that 	the 	employer avail 	all 	"other means 	of
communication" 	to 	its 	business 	relation or 	adversary 	just
because 	these means 	exist, 	or 	just because 	some groups 	use
1The 	employer may not, 	however, 	refuse all access 	to
bulletin boards 	and mailboxes, 	use of which 	is 	expressly
mandated by statute, 	or 	to 	internal mail 	systems, 	which we have
found 	to be 	required 	as 	a 	traditional 	and 	essential 	means 	of
communication. 	Richmond 	Unified 	School 	District/Simi 	Valley
Unified School 	District 	(1979) 	PERB Decision No. 	99.
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them. 	The 	law 	simply mandates 	reasonable 	rules.2 The
statutory requirement 	for 	reasonable 	rules 	is 	met where
restrictions 	are based on a good business purpose, 	are 	fairly
and 	logically 	constructed and 	applied, 	and adequate 	access
results.
Member Jaeger 	cites 	evidence 	to 	indicate 	that 	the
University did 	not 	in 	fact 	reserve 	to 	itself 	exclusive 	use 	of
this banner 	space. 	The 	same evidence also demonstrates 	that
the 	University did not 	apply reasonable 	rules. 	The 	University
alleged 	that 	the 	space was 	only 	to be 	used 	for 	"affiliated
organizations" 	but blatantly proceeded 	to 	thrice 	ignore 	its 	own
dictate. 	A rule 	arbitrarily applied 	is 	not 	a reasonable rule.
Thus, 	while 	the 	law allows 	the University leeway to restrict
employee 	organization access, 	it requires 	those 	restrictions be
pursuant 	to reasonable rules. 	As 	they were not, 	the University
erred.
However, 	I do 	feel 	it necessary to specifically reject 	the
ALJ's 	statement 	that 	the 	University wanted 	to decide 	when
2Section 	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.
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AFSCME had 	communicated 	sufficiently with 	the 	employees. 	No
such evidence exists. 	Rather, 	as Chairperson Hesse's dissent
correctly points 	out, 	the 	University was 	primarily 	interested
in not 	contradicting 	its 	own vigorous 	"no representation"
campaign.3 While 	the 	Board 	might 	well 	find 	such 	a 	goal 	to be
quite reasonable, 	here, 	it was not properly pursued and
implemented.
3I do 	not 	find 	at 	all 	credible 	the 	University's 	other
argument, 	that 	it was protecting 	itself 	against a possible
unfair 	practice 	charge by a 	competing 	union.
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Hesse, 	Chairperson, 	dissenting: 	As noted by the author of
the majority opinion, 	an employer 	can 	restrict 	a union's 	use of
facilities 	and 	limit 	its 	access 	as 	long as 	those 	regulations
are 	reasonable and non-discriminatory. 	As 	I 	interpret 	the
facts 	of 	this 	case, 	UC's 	restriction on 	the banner 	space was
not 	unreasonable because of 	two 	legitimate business 	reasons.
First, 	UC 	logically 	feared 	that AFSCME's 	use of 	the banner
space 	could have 	drawn an 	unfair 	practice 	charge 	from a
competing 	union 	on 	the 	grounds 	that 	UC 	favored AFSCME. 	Because
the banner 	space was unique, 	equal 	access 	to all 	unions 	was 	not
possible. 	Even allotting various 	unions 	use of the 	space on a
rotation basis 	would not 	result 	in 	equal 	access 	because 	use 	of
the 	space 	the week 	or 	two 	just prior 	to 	the representation
election 	is 	far 	more valuable 	than during a week 	some months
earlier. 	That AFSCME offered 	to provide 	"releases" 	from other
unions 	is 	immaterial. 	Neither 	PERB nor 	UC 	should be 	required
to examine 	the 	fairness 	or 	validity of releases 	in 	this
situation. 	Therefore, 	UC's wish not 	to 	favor one union over
another 	was 	a 	legitimate 	concern 	and 	its 	response 	of
restricting AFSCME's use of 	the 	space was 	reasonable.
The 	second, 	though less 	important 	reason why UC's
restriction was 	not 	unreasonable 	is 	its 	desire not 	to
contradict 	its 	own vigorous 	"no representation" 	campaign. 	The
placement of 	the banner 	was 	on UC property and, 	presumably,
required 	UC 	cooperation 	in 	the 	mere physical 	act 	of placing 	the
10
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banner. 	Thus, 	an ambiguity arises: 	UC wants 	"no
representation" 	but 	will help a 	union communicate 	the opposite
message 	to 	its 	employees. 	Surely, 	UC has 	the right 	to avoid
giving such mixed signals 	to 	its 	employees. 	Nor 	am 	I persuaded
by 	the 	testimony or 	the ALJ's 	findings 	that UC's 	campaign was
so 	well-known 	that 	no 	one 	could possibly misunderstand 	UC's
position 	and 	confuse 	UC's 	permission 	to 	fly 	the banner 	with 	an
endorsement 	of AFSCME. 	We 	can have no way of knowing what 	the
average employee 	thought, 	and 	I do not believe 	that AFSCME met
the burden 	of proof 	of 	showing 	that 	there 	could be 	no 	confusion.
For 	the above 	reasons, 	I would hold that 	UC's 	restriction
was reasonable 	in 	this 	instance.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	LA-CE-94-H,
American Federation of State, 	County and Municipal Employees,
AFL-CIO v. 	Regents of 	the University of California, 	in which
all parties had 	the 	right 	to participate, 	it has 	been 	found
that 	the 	University 	of 	California 	violated 	Government 	Code
section 3571(a) 	and 	(b).
As 	a 	result 	of 	this conduct we 	have 	been ordered 	to post
this Notice 	and will 	abide by 	the 	following. 	We will:
1. 	CEASE AND DESIST FROM:
1. 	Denying AFSCME 	rights guaranteed 	to 	it 	by 	section
3568 	of 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act 	by
failing 	or 	refusing 	to grant AFSCME 	reasonable 	access 	to 	banner
space 	located 	at 	the 	intersection of 	LeConte 	Avenue 	and
Westwood Boulevard 	at UCLA; 	and
2. 	Interfering with, 	restraining or coercing
employees 	in 	the 	exercise 	of 	the 	rights guaranteed 	to 	them by
the 	Higher 	Education 	Employer-Employee 	Relations 	Act 	by 	failing
or 	refusing 	to permit AFSCME 	to 	use 	the 	above-cited 	banner
space.
Dated: 	REGENTS 	OF 	THE UNIVERSITY 	OF
CALIFORNIA
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN 	POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OP CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AMERICAN FEDERATION OF 	STATE, 	COUNTY
AND MUNICIPAL EMPLOYEES, 	AFL-CIO,
Charging 	Party,
V.
THE 	REGENTS OF 	THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Unfair 	Practice
Case 	No. 	LA-CE-94-H
PROPOSED DECISION
(3/30/84)
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Appearances; 	Glenn Rothner, 	Attorney 	(Reich, 	Adell 	and Crost)
for 	the American Federation of 	State, 	County and Municipal
Employees; 	Edward M. 	Opton, 	Jr., 	Attorney for the Regents of
the 	University of 	California.
Before Marian Kennedy, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On May 19, 	1983, 	the American Federation of State, 	County
and Municipal Employees, 	AFL-CIO, 	(hereinafter AFSCME) 	filed an
unfair 	practice 	charge 	against 	the 	Regents 	of 	the 	University of
California 	(hereinafter 	the 	University) 	alleging 	that 	the
University violated 	section 	357l(a) 	and 	(b) 	and 	section 	3568 of
the 	Higher 	Education 	Employer 	Employee 	Relations 	Act
(hereinafter 	HEERA or 	the Act)l by denying AFSCME access 	to
1HEERA 	is 	codified 	in Government 	Code 	section 	3560 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	are
to 	the 	Government 	Code.
Section 	3571(a) 	and 	(b) 	provide 	that 	it 	shall be unlawful
for 	the higher 	education 	employer 	to:
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banner 	space 	located 	on 	University property at 	Westwood
Boulevard and LeConte Avenue 	in Los Angeles. 	At 	the 	same 	time,
AFSCME 	filed 	a 	request 	that 	the 	PERB 	seek 	injunctive 	relief 	to
require 	the 	University 	to permit 	access 	to 	the banner 	space.
That 	request 	was denied on May 	27, 	1983.
A complaint 	was 	issued on June 	7, 	1983, 	incorporating 	the
allegations of the charge. 	By letter dated August 	3, 	1983, 	the
parties 	waived 	informal 	settlement 	conference 	on 	the 	matter.
On August 	3, 	1983, 	the University filed 	its Answer
admitting 	that 	it denied 	the use of banner 	space to AFSCME, 	but
denying 	that 	that 	action 	constitutes 	a violation 	of 	HEERA.
A formal hearing was held on January 13, 	1984, 	in
Los 	Angeles by the 	undersigned 	administrative 	law 	judge. 	All
parties having 	filed briefs, 	the matter 	was 	submitted 	for
decision on March 20, 	1984.
STATEMENT 	OF 	FACTS
This 	case 	arose 	in 	the 	context 	of a 	representation 	election
at 	the University. 	AFSCME 	sought 	to 	represent 	employees 	in
five 	system-wide 	bargaining 	units 	and 	three 	or 	four 	additional
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

units 	located 	at 	the 	University of 	California 	at 	Los 	Angeles
(hereinafter 	UCLA). 	The 	election was 	conducted by mail ballot
during 	the period of May 23 to June 	16, 	1983. 	It 	involved 	some
40,000 University employees, 	10,000 of whom were 	located at 	the
UCLA campus.
On May 	9, 	as part 	of 	its 	election organizing 	campaign,
AFSCME 	filed 	an 	application 	with 	the 	UCLA 	Inter-organizational
Relations 	Office 	(hereinafter 	IRO) 	to use banner 	space 	located
at 	the 	intersection of Westwood 	Boulevard
and 	LeConte 	Avenue2 	during 	the 	period 	of May 	23 	to
June 	5, 	1983. 	The 	request 	was 	routinely approved and AFSCME
deposited 	the 	required 	service 	fee. 	AFSCME planned 	to hang 	a
banner 	which 	read 	"Win a 	Stronger Voice 	in Your 	Future, 	Vote
AFSCME." 	The banner 	was 	in green and 	white 	and 	contained 	no
reference 	to 	the University. 	The UCLA colors 	are blue 	and
yellow.
On May 17, 	1983, 	AFSCME's 	representative was notified that
permission 	to use 	the banner 	space had been 	revoked.
The 	Election 	Campaign
The banner 	was 	intended 	to 	supplement 	other 	communication
techniques 	used 	by AFSCME as 	part 	of 	its 	pre-election
campaign. 	Along with other 	employee 	organizations, 	AFSCME had
2Two vertical poles 	are 	permanently 	installed 	on 	either
side 	of Westwood Boulevard 	just 	north of 	LeConte Avenue. 	The
poles 	are 	used 	to hang banners 	across 	Westwood 	Boulevard.
33

access 	to 	the 	University 	campuses 	to 	communicate 	with 	employees
during 	their 	non-working 	time. 	At 	UCLA, 	AFSCME set 	up tables
to distribute 	literature on campus, 	met 	with employees at
places 	where 	they gathered 	during 	their 	non-working 	time, 	held
meetings 	and 	rallies 	on campus, 	and posted 	its 	literature on
campus bulletin boards and other 	locations. 	It 	also employed
some 	television, 	radio and 	newspaper 	advertising 	and put 	out
its 	own 	local as 	well 	as 	state-wide 	newspapers 	which were
distributed 	to 	employees. 	AFSCME purchased a 	list 	of 	mailing
addresses 	of University employees 	from 	the 	University
system-wide 	administration 	and 	attempted 	to 	communicate 	with
employees 	through use 	of 	those 	addresses 	also.
Anthony Corbo, 	coordinator 	of AFSCME's 	election 	campaign 	in
Southern 	California, 	testified 	that 	some of these 	means 	of
communication 	were 	hampered by 	University 	action 	and 	that
AFSCME was 	not 	able 	to 	communicate 	with University employees 	to
the degree 	it 	thought necessary. 	In particular, 	Corbo
testified 	that 	AFSCME was 	not 	permitted 	to meet 	with 	employees
at 	the UCLA Medical 	Center 	in 	those places 	where 	they gathered
during 	their 	non-working 	time3 	nor 	in UCLA's 	communication
3Another 	employee 	organization 	filed 	unfair 	practice
charges 	regarding 	this 	denial 	of 	access 	and 	won an order
requiring 	the 	University to permit 	access 	to 	some UCLA Medical
Center 	locations 	in 	Regents 	of 	the 	University of 	California,
University of 	California 	at 	Los 	Angeles 	Medical 	Center 	(8/5/83)
PERB Decision No. 	329-H.
A	4

center. 	AFSCME characterized 	its 	communications 	with employees
at 	these 	two 	locations 	as being 	"hit 	or miss." 	In addition,
Corbo 	testified 	that 	the 	mailing 	list 	supplied by 	the
University had 	serious 	inaccuracies 	and 	omissions 	which
interfered 	with AFSCME's 	communications 	with employees 	through
that 	medium.4
The 	University also 	engaged 	in 	a pre-election 	campaign 	to
communicate 	its position opposing 	unionization. 	It published a
monthly newsletter 	called 	"News 	and View" 	which was 	distributed
to all 	supervisors 	and managers 	and discussed 	campaign 	issues.
Some 	supervisors 	and 	managers 	posted 	the 	publication 	for
employees 	to 	see. 	The University also 	sent 	out bi-weekly
"Supervisors' 	Updates" 	to all 	supervisors during the 	four
months 	preceding 	the 	election 	and 	distributed 	about 	15 	issues
of an 	"Employee 	Fact 	Sheet" 	to employees 	on an 	irregular basis
during 	the 	eight 	or 	nine 	months preceding 	the 	election. 	About
three 	thousand 	copies of each 	issue of the 	Fact 	Sheet 	was 	made
available 	to employees 	at 	various places on campus.
In addition, 	the University conducted 	training 	sessions 	for
supervisors 	and managers 	two 	to 	three 	times per week 	for 	two or
three 	months preceding 	the 	election 	in order 	to train each
4 The 	UCLA labor 	relations 	office 	suggested 	to AFSCME that
it also purchase 	an 	employee 	address 	list 	from UCLA because
that 	list 	was 	more 	accurate 	than 	the 	University's 	system-wide
list. 	AFSCME declined because 	the 	system-wide 	list 	was 	the 	one
to be 	used 	for 	mailing ballots.
55

supervisor 	and 	manager 	to 	communicate 	the 	University's 	position
with 	respect 	to 	the 	election 	to 	their 	rank 	and 	file 	employees.
Finally, 	the University sent 	approximately 	15 	letters 	to
employees 	at 	either 	their 	work 	or home 	addresses 	explaining 	the
University's 	"no unionization" position.
UCLA Labor 	Relations 	Manager 	Greg 	Kramp 	testified 	that
despite 	these 	communications, 	some 	employees at
University-sponsored 	meetings 	indicated 	by 	their 	questions 	that
they 	did 	not 	understand 	such 	election 	issues 	as what 	an 	agency
shop 	is, 	how a majority necessary 	for an election victory 	is
calculated, 	and how 	the bargaining process 	works.
Denial 	of 	Banner 	Space
The 	University's 	decision 	to deny AFSCME the 	use 	of 	the
requested banner 	space 	was 	initiated by 	Kramp. 	Kramp 	testified
that 	IRO director 	Dean 	Robert 	Ringler 	notified him 	that 	AFSCME
had 	made 	the 	banner 	space 	request 	and 	that 	Ringler had 	approved
it.5 Kramp objected 	on 	the 	ground 	that 	permitting 	AFSCME 	to
post 	a 	pro-union banner 	at 	the 	entrance 	to UCLA was 	contrary 	to
the 	policy of 	the 	University 	to oppose 	unionization 	of 	its
employees 	and 	it 	might 	subject 	the 	University to unfair
practice 	charges 	from other 	employee 	organizations 	involved 	in
the election on 	the 	theory that, 	by permitting the banner, 	the
5Although 	the 	labor 	relations 	office 	is 	not 	responsible
for 	approving requests to use University 	facilities, 	Kramp
testified 	that 	Ringler 	sometimes 	notified him 	regarding
facilities 	requested by 	employee 	organizations.
66

University 	was 	demonstrating 	favoritism 	toward AFSCME over 	the
other 	organizations.
Permission 	to use 	the banner 	space 	was 	subsequently 	revoked
by James 	Klain, 	director of 	the Campus Activities 	Service
Office, 	on the 	ground 	that 	AFSCME's banner 	did not 	fall 	within
the UCLA Activities 	Guidelines 	limiting 	the 	use of 	the
LeConte-Westwood banner 	space 	to promotional 	material 	for
official University events. 	Klain told Corbo, 	however, 	that
permission was 	revoked because 	of 	objections 	raised by 	the
labor 	relations 	office.
Corbo contacted 	Kramp and 	demanded 	to know why 	the 	use 	of
the banner 	space 	was 	denied. 	When 	Kramp 	indicated 	that 	the
University might 	be 	subject 	to an 	unfair 	practice 	charge 	for
favoring AFSCME over 	other 	unions, 	Corbo offered to obtain
waivers 	of potential 	unfair 	practice 	charges 	from 	the 	other
employee 	organizations 	involved 	in 	the 	election. 	According 	to
Corbo, 	Kramp replied 	that 	obtaining waivers 	would not 	solve 	the
problem 	since 	the 	University also 	objected 	to AFSCME's 	posting
the banner 	on 	the 	ground 	that 	it 	conflicted 	with 	the
University's 	"no unionization" policy. 	Kramp 	testified 	that he
did 	not 	recall 	any offer 	by Corbo to obtain waivers 	from 	the
other 	employee 	organizations.
University 	Regulation of 	the 	Use 	of 	Banner 	Space
The UCLA Activities 	Guidelines provide 	in relevant part 	as
follows:
77

9. 	Posters, 	signs or banners may only be
placed 	in 	the 	following 	authorized 	locations
on campus:
b. 	Banner 	Placement 	Locations
1) 	Banners 	may be placed 	in 	the 	following
locations 	with prior 	approval of 	the
Organizational 	and 	Inter-organizational
Relations 	Office
a. 	The Kerckoff 	Hall 	- Ackerman Union
overhead 	walkway.
b. 	The banner 	poles 	on Bruin Walk.
2) 	Banners or 	signs 	advertising official
University 	functions 	may be placed 	in other
locations6 with 	the 	authorization of 	the
Campus Activities Service Office. 	. 	. 	.
The 	definitions 	section 	of 	the 	Activities 	Guidelines
defines 	official University functions 	as:
Scheduled academic classes, 	research and
activities; 	normal daily operations of
University units; 	and programs 	or activities
sponsored by University 	units 	in 	the 	course
of 	fulfilling 	their 	University mission.
A University Unit 	is 	defined 	as:
Any 	academic or 	nonacademic 	department 	or
division or 	any other 	official 	University
entity.7
66The	The 	"other 	locations" 	for banners are 	the
LeConte-Westwood 	and 	the 	Sunset 	Boulevard 	- Westwood 	entrances
to 	the UCLA campus.
7Separate 	definitions 	are 	also 	included 	for 	a 	"Registered
Organization" 	and 	an 	"Employee 	Organization." 	A Registered
Organization 	is 	"[a]n 	organization whose 	membership 	is 	limited
to UCLA students 	and/or personnel 	which has 	complied 	with 	the
registration procedures 	specified 	[in the 	guidelines]." 	An
8
• 	•

Employee 	Organization 	is 	"[a]n organization which has 	as 	its
primary purpose 	the 	representation of University employees 	in
their 	employment 	relations 	with 	the 	University. 	. . . "
Kramp 	testified 	that he had participated 	in 	the 	drafting 	of
the 	Campus Activities Guidelines 	and 	that 	one 	purpose 	of 	the
guidelines 	was 	to 	separate 	the 	means 	of 	communication 	available
for 	official University 	functions 	from 	those 	available 	for
other 	matters. 	He 	testified 	that 	the posting of banners 	at
"other 	locations" 	under 	action 	9.b.2 was 	intended 	to be 	limited
to 	"those 	things 	contained 	in 	the 	definition of 	official
University 	function, 	academic 	classes 	and 	other 	things 	related
to 	the academic 	mission."
Evidence 	was 	introduced with 	respect 	to other 	requests 	for
use 	of 	the 	LeConte-Westwood banner 	space 	which had been
approved 	in 	the past. 	Banners have been permitted 	carrying
messages 	regarding Gay 	and 	Lesbian 	Awareness Week 	sponsored by
a UCLA gay and 	lesbian group, 	a Bike-a-thon 	for Ataxia
sponsored by a 	fraternity, 	an unspecified 	message8 by 	the
Israel 	Act Committee, 	the UCLA Mardi 	Gras 	sponsored by UCLA
Associated 	Students, 	the 	UCLA Spring 	Sing 	sponsored by 	the
fraternity/sorority council, 	the 	California 	Special 	Olympics
8In 	its brief, 	AFSCME represented 	that 	the 	content 	of 	the
banner 	message 	in 	this 	case 	was 	a 	Hebrew New Year 	greeting and
invited 	the 	ALJ 	to 	telephone 	the 	rabbi 	representing 	the 	group
to confirm 	the 	information. 	Counsel 	for AFSCME was 	notified by
telephone 	that 	its 	representation would be disregarded 	as 	not
constituting 	admissible 	evidence.
9

sponsored by 	the University 	Institutional 	Relations 	Office, 	a
Blood 	Drive 	sponsored by Associated 	Students, 	a Gymnastics
Invitational 	apparently 	sponsored by UCLA Men's 	Intercollegiate
Athletics, 	Summer Session Registration, 	a Volleyball
Competition 	sponsored by 	Intercollegiate 	Athletics, 	the
Preservation Hall 	[Jazz 	Band] 	sponsored by the 	Department 	of
Fine 	Arts, 	McDonald's-UCLA Pre-Olympic 	Gymnastics Meet 	and 	the
UCLA-Pepsi 	Invitational 	Track 	Meet.
Kramp 	testified 	that 	the 	Pepsi 	sporting 	event 	was 	a
University-sponsored 	activity 	and 	the 	University 	generated
income 	from 	it. 	Ray Gonzales, 	senior public 	event 	manager 	for
CASO, 	testified 	that 	the 	University received a percentage 	of
ticket 	sales 	for 	the McDonald's 	event.
There 	was 	also 	substantial 	testimony 	regarding 	the 	use 	of
other 	University 	facilities 	for 	both 	commercial 	and political
purposes. 	In particular, 	University records 	subpoenaed by
AFSCME 	showed 	that 	during 	the 	course 	of a 	single 	month 	in 	1983
some 	17 	permits 	were 	issued 	for 	the 	use 	of various campus
locations 	for photographs or 	filming 	for 	commercial purposes.
The 	only 	restrictions 	which 	the 	University 	imposed 	upon
granting 	these 	permits 	were 	the payment 	of 	substantial 	fees 	and
the 	limitation 	that 	neither 	the 	towers 	of 	Royce Hall 	nor 	the
name 	of 	the hall 	appear 	in 	any of 	the photographs 	or 	films
taken. 	Gonzales 	testified 	that 	the 	reason 	these 	restrictions
were 	imposed 	was because 	the 	name 	and 	towers of 	Royce 	Hall 	are
10

recognizable 	to 	the 	public 	as 	symbols 	of 	UCLA and UCLA wants 	to
prevent 	those 	symbols 	from being 	appropriated 	for 	commercial
purposes. 	The 	parties 	stipulated 	that 	the University makes a
profit 	by permitting 	the 	commercial use 	of 	its 	facilities.
During 	the 	same one 	month period, 	permits 	were 	granted 	for
the 	use 	of University 	facilities 	for 	the 	following 	political
events: 	an 	arms 	control 	symposium 	sponsored by 	the 	League 	of
Women Voters, 	an 	Israel Programs 	Fair 	sponsored by the 	Israel
Action Committee, 	an 	Israel Memorial 	Day celebration by 	the
same 	sponsor, 	a 	South African 	Solidarity Day 	sponsored by 	the
South African Task 	Force, 	and an 	Israeli 	Independence 	Day
Celebration 	sponsored by 	the 	Israel Action 	Committee. 	The
facilities 	used 	in 	those 	cases 	were principally campus
buildings or outdoor 	locations.
ISSUE 	PRESENTED
Did 	the University violate 	section 	357l(a) 	and 	(b) 	by
denying 	AFSCME 	access 	to banner 	space 	located 	on 	University
property at Westwood Boulevard 	and LeConte 	Avenue 	at UCLA?
DISCUSSION 	AND 	CONCLUSIONS 	OF 	LAW
HEERA section 	3568 	gives 	employee 	organizations 	the 	right
to access 	to University communication 	facilities. 	The 	section
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
11

other means of 	communication, 	and 	the 	right
to use 	institutional 	facilities 	at
reasonable 	times 	for 	the 	purpose of meetings
concerned 	with 	the 	exercise 	of 	rights
guaranteed by 	this Act.
In 	Regents 	of 	the University of California, 	Lawrence
Livermore National 	Laboratory 	(4/30/82) 	PERB Decision No. 	212-H
(hereinafter Lawrence Laboratory), 	the PERB found 	that HEERA
accords 	employee organizations 	a presumptive 	right 	of 	access.
Where 	an employer 	seeks 	to 	impose 	restrictions 	on 	that 	right,
it 	must 	establish 	that 	those 	restrictions 	are 	necessary to
avoid disruption 	of 	its 	mission 	and 	that 	the 	restrictions 	are
narrowly drawn 	so 	as 	to 	avoid 	overbroad 	and 	unnecessary
interference with access 	rights. 	Id. 	at p.15.
The 	Lawrence 	Laboratory 	case 	involved 	an 	attempt 	by 	the
University to 	exclude 	non-employee 	organizers 	from portions 	of
the 	Lawrence 	Livermore 	National 	Laboratory on 	national 	security
grounds. 	The 	Board held 	that 	national 	security concerns 	are 	a
weighty 	factor 	to be 	considered 	in 	reaching 	an 	accommodation
between 	the 	right 	of access 	and 	the 	University's 	operational
needs. 	The 	Board held 	that 	consideration of 	the 	factual
setting 	and 	the 	specific 	operational 	needs 	of 	the 	laboratory
was 	necessary 	to determine 	whether 	the 	restrictions 	on 	access
which 	the 	University 	sought 	to 	impose 	were 	reasonable 	and 	not
overbroad.
A similar question was 	presented 	in 	Regents 	of University
of 	California, 	University of 	California 	at 	Los Angeles 	Medical
12

Center, 	(8/5/83) 	PERB Decision No. 	329-H 	(hereinafter UCLA
Medical Center). 	In that case, 	the University sought to
exclude 	non-employee 	union organizers 	from access 	to 	employee
lounges 	in patient 	care 	areas 	of the UCLA Medical Center. 	The
Board 	applied 	the 	same 	balancing of 	employee organizations'
presumptive 	right 	of access 	against 	the 	particular 	needs 	of 	the
workplace. 	It 	concluded 	that 	the presumptive 	right of access
to areas 	other 	than 	immediate patient 	care 	areas 	can be
rebutted by 	evidence 	that 	a ban on 	access 	is necessary 	to
prevent 	disruption 	of health 	care 	operations 	or 	disturbance 	of
patients. 	Applying 	that 	standard, 	the Board determined 	that
access 	to employee 	lounges 	was 	appropriate 	while 	other 	access
sought by 	the 	union 	involved 	was 	not 	appropriate.
PERB has 	also had 	the 	occasion 	to consider 	access 	rights 	in
a 	different 	context 	in 	San 	Ramon Valley Unified 	School 	District
(10/29/82) PERB Decision No. 	254. 	In that case, 	the school
district 	refused 	to permit 	an 	employee 	organization 	to
distribute 	its 	newspaper 	through 	the 	District's 	mail 	system.
PERB held 	that 	the 	access provision of 	the 	Educational
Employment 	Relations Act, 	which 	is 	identical to the HEERA's
access provision, 	grants 	employee organizations 	the 	right 	to
use 	employer 	mail 	facilities 	subject 	to 	reasonable
regulations. 	The 	Board affirmed 	the 	conclusions 	of 	the
administrative 	law 	judge 	that 	the burden 	is 	upon 	the 	school
district 	to 	show 	that 	restriction of 	that 	right 	is 	necessary
13

and 	that 	regulations 	limiting 	access 	must be 	"narrowly drawn 	to
cover 	the 	time, 	place 	and 	manner 	of activity without 	impinging
on the content unless 	it 	[the access 	sought] presents a
substantial 	threat 	to peaceful 	school operations."9
Furthermore, 	such 	regulations 	must not be 	vague 	and 	subject 	to
unfettered 	discretion 	in 	their 	interpretation 	and 	application.
Id.
-
AFSCME argues 	that 	the 	above-cited 	cases 	and 	section 	3568
give 	it 	a presumptive 	right 	of access 	to 	the University's
institutional means 	of communication, 	subject only to
reasonable 	regulation. 	That presumptive 	right 	can be 	overcome
only by proof 	of 	legitimate business 	reasons 	for 	denying
access, 	and AFSCME argues, 	the University has not met 	that
burden 	of proof.
The University makes 	two 	separate 	arguments 	that 	its 	denial
of access to the banner 	space was 	justified. 	First, 	the
University 	argues 	that 	LeConte 	Avenue-Westwood 	Boulevard 	banner
space 	is, 	by University regulation, 	reserved 	for 	official
University communications only. 	Moreover, 	the prominence of
that 	location as 	the principal entrance 	to 	the UCLA campus and
its 	use 	for official University functions 	only, 	together 	create
9
See Proposed Decision of 	the 	administrative 	law judge 	at
p. 	7 	[San Ramon Unified School District 	(4/13/81) 	Case
No. 	SF-CE-324 	affirmed by San Ramon Valley Unified 	School 	District,
supra, 	PERB Decision No. 	254] , 	quoting from Richmond Unified
School District 	(8/1/79) 	PERB Decision No. 	99,
14

the 	impression 	in 	the minds of persons viewing a banner 	at 	that
location 	that 	the 	message hung 	there 	is 	one 	sponsored by the
University. 	The 	University argues 	that 	to post 	a banner 	urging
employees 	to vote 	for AFSCME at 	that 	location would, 	therefore,
constitute 	a 	misrepresentation of 	the 	University's position,
since 	the 	University 	is 	opposed 	to unionization 	of 	its
employees. 	Moreover, 	such a banner would be 	interpreted by
viewers 	as 	an endorsement 	of AFSCME by 	the University, 	which
would 	subject 	the 	University 	to possible 	unfair practice
charges 	for 	favoritism10 from other 	employee 	organizations
involved 	in 	the 	June 	elections.
Secondly, 	the University argues 	that 	the 	section 	3568
access provision 	establishes 	a 	rule of 	reasonableness 	which 	it
does 	not 	require 	that 	every conceivable means 	of access 	through
institutional 	communications be 	opened 	to 	employee
organizations. 	Since AFSCME had 	fully adequate 	alternative
means 	of 	communicating with employees, 	both 	through alternative
banner 	spaces 	and 	through 	a variety of other 	media, 	section
3568 does 	not 	require 	that 	the 	University also permit AFSCME to
use 	this 	particular banner 	location.
The 	question of 	the 	right 	of 	access of an employee
organization 	to 	employer 	controlled banner 	space 	as 	a means 	of
10Section 	3571(d) 	prohibits 	an employer 	from 	taking
action 	to 	encourage 	employees 	to 	join one 	employee 	organization
in preference 	to another.
15

communication to employees 	appears 	to be 	unique. 	The 	PERB
decisions discussed above, 	however, 	which 	interpret 	section
3568 	to provide 	that 	employee organizations have 	a presumptive
right of access, 	are nonetheless applicable here. 	In
particular, 	San Ramon Valley Unified 	School District, 	supra,
holds 	that 	the 	presumptive 	right 	of access 	applies 	not 	only 	to
access by non-employee organizers 	to 	the workplace, 	but also 	to
use 	of other 	institutional means 	of communication. 	There 	is 	no
question 	that 	the 	disputed 	banner 	space 	is 	an established
institutional means 	of communication at UCLA, 	used by both 	the
University 	itself 	and various 	organizations 	as 	a means 	of
communication 	with 	the 	University 	community.
The 	University argues 	that 	the Activities 	Guidelines 	above
limit 	the 	use 	of banner 	space 	at 	the 	LeConte-Westwood 	location
to official 	communications 	of 	the 	University. 	Section 	9.b.2
provides 	that 	only banners 	"advertising 	official University
functions" 	may be placed 	at 	"other 	locations," 	Which 	include
the 	LeConte-Westwood 	location. 	The 	University argues 	that
since 	"official 	University functions" 	are 	limited to: 	1)
scheduled academic classes, 	research and activities; 	2) 	normal
daily operations 	of a University unit; 	and 3) 	programs 	or
activities 	sponsored by University units 	in 	the 	course 	of
fulfilling 	their 	University 	mission, 	a banner 	urging 	employees
to 	vote 	for 	AFSCME does 	not 	constitute 	an official University
function. 	The 	Activities 	Guidelines 	therefore 	constitute
16

reasonable 	regulation of 	use 	of banner 	space 	which 	should be
respected 	in 	determining 	section 	3568 access 	rights.
AFSCME responds 	that 	the 	exercise 	of 	rights 	accorded
University employees by HEERA is part 	of 	the 	"normal daily
operations" of 	the University and, 	therefore, 	a banner urging
employees 	to exercise 	their 	right 	to vote 	in a 	representation
election 	and 	to 	vote 	in 	favor 	of 	one of 	the 	employee
organizations 	contesting 	the 	election 	is part 	of 	the 	normal
daily operations of 	the 	University. 	Moreover, 	AFSCME argues
that 	an 	examination of past 	permitted 	uses 	of the
LeConte-Westwood banner 	space 	indicates 	that 	such use has 	not
been 	limited 	to 	those 	activities 	defined 	as 	official University
functions. 	AFSCME points 	to 	the banners 	for 	gay and 	lesbian
awareness 	week 	and 	the 	unspecified 	message 	of 	the 	Israel Act
Committee, 	as 	well as banners 	advertising 	the McDonald-UCLA
Pre-Olympic 	Gymnastics 	Meet 	and 	the 	UCLA-Pepsi 	Invitational
Track Meet 	as uses 	of 	the banner 	space 	which 	fall 	outside 	of
"programs 	or 	activities 	sponsored by University units 	in the
course 	of 	fulfilling 	their 	University 	mission."
The 	evidence 	does 	support 	a conclusion 	that 	the 	use 	of the
LeConte-Westwood 	banner 	space 	has 	not been 	limited 	in 	the 	past
to 	official 	University 	functions 	as 	they 	are 	defined 	in 	the
Activities Guidelines. 	Specifically, 	the banners 	sponsored by
the 	Gay 	and 	Lesbian Awareness 	Committee 	and 	the 	Israel 	Act
Committee 	were 	not 	ones 	related 	to 	scheduled academic 	classes,
17
-

normal 	daily operations 	or programs 	or 	activities 	sponsored by
University units. 	In those 	two cases, 	the organizations
sponsoring 	the banners 	were 	registered organizations, 	but
certainly were 	not 	University units 	acting 	"in 	the 	course 	of
fulfilling 	their 	University mission."11 	The 	definition 	of
University units 	in 	the Activities 	Guidelines 	is 	"any academic
or 	non-academic 	department 	or 	division 	or 	any other 	official
University 	entity." 	Registered 	organizations 	are 	defined
separately 	in 	the 	Activities 	Guidelines 	and do not 	appear 	from
those 	definitions 	to be 	considered 	"official 	University
entities." 	Thus, 	the University's 	contention that use of the
LeConte-Westwood banner 	space 	in 	the 	past has been 	limited
strictly 	to 	those 	uses 	permitted by 	the 	Activities 	Guidelines
is 	not 	supported 	by 	the 	record.12
The University argues 	that 	it 	is also 	the prominence of 	the
LeConte-Westwood banner 	space 	at 	the 	"front 	door" 	of UCLA which
makes 	this banner 	space 	unique 	and 	communicates 	a 	message of
University 	sponsorship. 	The 	evidence 	in the 	record, 	as well as
the undersigned's observation of 	the 	area, 	indicates 	that 	the
LeConte-Westwood banner 	location 	is 	indeed 	a 	uniquely prominent
11Query 	whether 	fraternities 	and 	sororities, 	the 	ad hoc
Spring 	Sing 	Committee, 	and 	even the Associated 	Students 	are
"University units 	in 	the 	course 	of 	fulfilling 	their 	University
mission" 	within 	the meaning of 	the Guidelines.
12	121n	In 	fact, 	this 	was not 	a concern originally expressed by
Kramp 	when he 	sought 	to have 	permission 	for 	the banner 	revoked.
18

one 	spanning 	the 	main pedestrian 	and 	vehicular 	entrance 	to 	the
UCLA campus. 	While 	the banner 	poles 	do not 	carry any UCLA
identification, 	the 	street 	over 	which 	the banner 	would have
been hung 	is 	flanked 	on both 	sides 	by 	stone 	walls 	which carry
the 	name UCLA. 	The 	University argues 	that 	the 	very prominence
of 	this 	location 	indicates 	that 	a message hung 	there 	must 	be
one 	sponsored 	or 	endorsed by 	the 	University.
The 	prior 	usage 	of 	the 	LeConte-Westwood banner 	space has
been 	predominately by 	University 	departments 	or 	such
organizations 	as 	fraternities 	and 	sororities 	and 	the 	Associated
Students. 	Two banners 	announced 	sporting 	events 	jointly
sponsored by 	the 	University and 	a 	commercial 	enterprise
(McDonald's 	and Pepsi), 	and 	included 	the 	commercial 	sponsor's
name 	and 	logo as part 	of 	the banner. 	The 	"Gay and Lesbian
Awareness Week" 	and 	the 	unspecified 	message by 	the 	Israel
Action 	Committee 	are 	examples 	of use 	of the 	banner 	space 	for
political purposes by organizations 	whose 	message 	is 	likely 	to
be 	controversial 	in 	the 	University community. 	The 	use 	of 	the
banner 	space by 	those organizations 	exemplifies 	the
University's 	fulfillment 	of 	its 	role 	of 	encouraging 	free 	speech
but 	it 	would be 	unlikely 	that 	such banners 	would be 	interpreted
by 	reasonable 	people 	as 	an 	endorsement 	by 	the 	University of 	the
particular 	political positions 	advocated 	by 	the 	sponsoring
organizations.13
13Certainly 	reasonable people 	would 	not 	interpret 	the
19

McDonald's 	and 	Pepsi 	banners 	as University endorsements 	of
those products.
Although 	the 	LeConte-Westwood banner 	space 	has 	been 	used
predominately by 	the 	University and 	associated 	social 	or
service organizations, 	given 	its 	other 	commerical 	and political
uses, 	I 	am not 	convinced 	that 	the 	message on a banner hung at
that 	location would be 	interpreted by viewers 	as 	a 	message
endorsed by 	the 	University. 	Particularly 	in 	the 	context 	of 	a
representation 	election 	among 	University 	employees 	in 	which 	the
University took 	the 	well-advertised position 	that 	it 	opposed
unionization, 	it 	is difficult 	to 	imagine 	that employees could
misinterpret 	a 	"Vote 	for AFSCME" 	banner 	as being 	sponsored by
the 	University. 	Although 	Kramp 	testified 	to questions 	asked by
some 	employees 	indicating 	that 	they 	did 	not have 	a 	full
understanding 	of 	the 	election 	and 	collective bargaining
process, 	there was no evidence 	that 	the University's message
opposing 	unionization did 	not 	reach employees 	at UCLA. 	In
these 	circumstances, 	I conclude 	that 	the 	record does not
support 	an 	inference 	that 	the 	AFSCME banner 	would have been
misinterpreted 	as 	an 	endorsement 	by 	the 	University of
unionization 	and 	of 	AFSCME 	as 	an 	employee 	organization.14
14Indeed, 	had 	the 	University been 	concerned 	about
possible 	misrepresentation, 	the 	text 	of 	the banner 	could have
been 	revised 	to accommodate 	that potential problem. 	The
University, 	however, 	did not 	make any effort 	to accommodate 	its
concerns 	by any 	less 	drastic 	method 	than 	denying banner 	access
entirely.
20

Alternatively, 	the University argues 	that permitting AFSCME
to hang 	a banner 	at 	the 	LeConte-Westwood 	location would be 	seen
by 	employees 	and 	other 	unions 	as 	an 	endorsement by 	the
University of AFSCME over 	the 	other 	unions. 	Such an
endorsement 	would 	subject 	the 	University 	to potential 	unfair
practice charges under 	section 3571(d). 	The evidence 	indicates
that 	no 	employee 	organization 	other 	than AFSCME requested 	the
use 	of 	LeConte-Westwood banner 	space 	during 	the 	three 	weeks 	of
the 	representation 	election 	nor 	had 	any 	employee 	organization
ever 	requested 	the 	use 	of banner 	space 	at 	the UCLA campus. 	The
University offers no precedent, 	however, 	to support 	the
proposition 	that 	it 	would have been 	guilty of 	an unfair
practice had 	it 	permitted 	one 	employee 	organization 	to use 	a
particularly 	effective 	means 	of 	communication 	which had 	not
been 	requested 	by 	nor 	denied 	to 	other 	organizations.
The 	University 	speculates 	that 	if 	it had permitted AFSCME
to post 	its banner, 	other organizations 	would 	then have
demanded 	use 	of the 	same banner 	space. 	If 	the potential 	for
conflicting 	requests 	for 	the 	LeConte-Westwood 	banner 	space had
been 	the 	University's principal 	concern 	in denying AFSCME that
banner 	space, 	it 	could have conditioned 	the 	approval upon 	some
accommodation 	in 	the 	event 	that 	other 	employee 	organizations
should 	request 	the 	same 	space. 	Alternatively, 	the University
could have 	followed 	whatever 	its 	standard practices 	are 	for 	the
allocation of 	University 	facilities 	in 	the 	event 	of 	conflicting
21

requests 	for 	their 	use.15
AFSCME argues 	that 	the 	University's 	alleged 	concern 	about
unfair 	practice 	charges 	from other 	unions 	was 	unfounded 	since
Corbo had 	offered 	to obtain waivers 	of 	charges 	on 	that 	ground
from other 	employee 	organizations 	involved 	in 	the
representation 	elections. 	Corbo testified 	that 	when he made
the 	offer 	of waivers 	to Kramp, 	Kramp rejected 	it on 	the 	ground
that 	it 	would not 	resolve 	the University's 	other 	concern 	that
AFSCME's 	message 	conflicted 	with 	the 	University's 	position
against 	unionization 	of 	its 	employees.16
15In Azusa 	Unified 	School 	District 	(11/23/77) 	EERB
Decision No. 	38, 	the Azusa 	School District 	rented a 	school
building 	to the 	Azusa Educators 	Association 	(AEA) 	for 	a 	rental
fee 	of 	one dollar 	per year. 	Upon protest by 	the Azusa
Federation of Teachers 	(AFT), 	a competing employee
organization, 	that 	the 	District 	was 	showing 	favoritism towards
AEA by 	renting 	it 	the building 	at below market 	value, 	the
District 	offered 	to permit 	AFT to 	share 	the building with AEA.
The 	Board 	affirmed 	the 	finding 	of 	the 	administrative 	law 	judge
that 	the Azusa 	School 	District 	had 	discriminatorily 	favored 	the
AEA over 	the 	AFT by providing 	it 	with 	a 	school building 	and
that 	discrimination 	was 	not 	remedied by offering 	to permit 	AFT
to 	share 	the building, 	since 	the physical 	layout of 	the
building did 	not 	permit 	sharing by 	the 	two 	rival
organizations. 	The Board 	ordered 	that 	any 	future 	rental of 	the
building be at 	fair market value. 	In 	the 	instant 	case, 	the
University has 	not 	demonstrated 	that 	it 	could not have 	so
limited or 	conditioned AFSCME's 	use of 	the banner 	space 	as 	to
avoid 	potential 	irreconcilable 	conflicts 	with 	other 	employee
organizations.
16	16Althou h	Althou gh 	Corbo testified 	in 	some 	detail 	to his 	offer 	to
Kramp of 	waivers 	from other 	unions, 	Kramp 	testified 	that he 	did
not 	recall 	that 	part 	of 	their 	conversation. 	Since 	Corbo's
recollection 	was 	quite 	clear 	and 	Kramp 	does 	not 	deny 	that 	any
discussion 	of waivers 	by 	the 	other 	organizations 	took place but
asserts only 	that he does not 	recall 	such a discussion, 	I
credit 	Corbo's 	testimony on 	this point.
22

For all 	these 	reasons, 	I conclude 	that 	the University did
not 	have 	reasonable 	grounds 	to 	fear 	that 	permitting 	AFSCME to
hang 	its 	banner 	at 	LeConte-Westwood 	would have 	subjected 	the
University 	to unfair 	practice 	liability.
The 	University's 	second 	line of argument 	is 	that 	section
3568 	is 	a 	rule of 	reasonableness which does 	not 	require 	that 	an
employee 	organization be 	accorded 	every 	conceivable 	means 	of
access 	to 	institutional means 	of communication. 	The University
argues 	first, 	that 	under 	a 	reasonableness 	standard AFSCME would
not 	be permitted 	"to print 	'Vote 	for AFSCME 1 on 	the 	margin of
Respondent's 	letterhead 	stationery 	. . . 	or 	tape 	'Vote 	for
AFSCME' 	leaflets 	to patients' 	charts 	. . . 	or attach 	'Vote 	for
AFSCME 1 bumper 	stickers 	to University vehicles." 	Such means 	of
communication would be unreasonable, 	according 	to 	the
University, 	because 	they are 	media 	which have 	traditionally
been 	controlled by 	the 	University. 	The University would 	equate
use 	of banner 	space with 	the 	examples 	just 	cited.
This 	aspect 	of 	its 	reasonableness 	argument 	amounts 	to a
restatement of 	the argument, 	discussed above, 	that use of 	the
LeConte-Westwood banner 	space 	would 	create 	the 	impression 	that
the 	University 	endorsed AFSCME's banner 	message. 	That 	argument
is 	again 	rejected 	for 	the 	reasons 	discussed above.
The 	University also argues 	that banners 	on 	the premises 	of
an 	employer 	are 	not 	a usual or 	traditional means 	of
communication and, 	therefore, 	it 	is not unreasonable to
23

restrict 	their 	use. 	A similar 	argument 	was 	made 	and 	was
accepted by the 	administrative 	law 	judge, 	in Richmond Unified
School District, 	supra. 	On review, 	PERB expressly overruled
the 	administrative 	law 	judge 	on 	this 	point 	and 	said 	that
organizational 	access 	to 	school 	mail 	systems 	is 	not 	limited 	to
those 	situations 	where past 	practice by 	the 	District has
"opened 	the 	forum." 	The 	Board 	found 	that 	the 	statute 	does 	not
restrict 	organizational 	access 	to previously used 	communication
media but 	rather permits 	use of 	any means 	of 	communication,
subject 	to reasonable regulation. 	Thus, 	the 	fact that banners
are 	an 	unprecedented 	means 	of 	communication 	in 	the 	general
labor 	context 	and more 	specifically, 	that 	no employee
organization 	at 	UCLA had 	ever 	previously 	requested 	the 	use 	of
banner 	space 	does 	not 	affect AFSCME's 	right 	to 	the 	use 	of 	that
space under 	section 	3568. 	Moreover, 	the University's argument
is 	not 	factually 	supported 	since 	the 	evidence 	makes 	clear 	that
banner 	space 	is a normal, 	frequently-used means of
communication 	at 	UCLA.
The University also argues 	that, 	since AFSCME had
sufficient, 	adequate, 	alternative means of communicating with
University employees, 	section 	3568 	should not 	be 	read 	to
require 	that 	every potential 	means 	of 	communication be 	made
available. 	The 	University cites 	record 	evidence 	that AFSCME
communicated with employees 	through meetings, 	leaflets, 	two
AFSCME newspapers, advertisements 	in public 	media 	and 	obtaining
24

home addresses. 	Moreover, 	AFSCME ultimately hung 	the banner
which 	it 	wanted 	to put 	at 	LeConte-Westwood at 	two other
locations 	during 	the 	election period. 	The 	University argues
that 	those banner 	sites, 	located 	in Westwood Village adjacent
to 	the University, 	were adequate alternative means 	of
communicating 	the 	message 	on 	the 	banner.
In Regents of 	the University of 	California, 	University of
California at Los Angeles Medical Center, 	supra, 	PERB held 	that
the 	availability of alternative 	means of access 	was a
consideration 	to be weighed 	in 	striking 	a 	reasonable balance
between 	the 	needs 	of 	an 	employee 	organization 	to 	obtain 	access
of 	a particular 	type 	and 	the 	University's 	concern 	for
disruption of 	its 	operations by 	the granting of access. 	Thus,
the 	absence 	of alternative means 	of communication 	is 	not 	a
precondition 	to 	establishing 	the 	right 	of 	access 	under 	section
3568 	since 	that 	section establishes 	a presumptive 	right.
Rather, 	the 	availability of alternative 	means of access 	is 	a
factor 	to be 	weighed 	when 	considering 	whether 	the 	reasons
advanced 	by an 	employer 	for 	denying 	access 	are 	sufficiently
weighty 	to 	justify 	that 	denial.
In UCLA Medical 	Center, 	the 	reasons 	the University put
forward 	for 	denying 	access 	were 	prevention 	of disruption 	of
health care 	operations 	and disturbance 	of patients. 	Similarly,
in Lawrence Laboratory, 	the University's 	reasons 	for denying
access 	were 	based on 	national 	security concerns 	and 	its
25

obligations 	to 	exclude persons 	without 	the 	appropriate 	national
security clearances 	from restricted 	areas. 	In both 	those 	cases
the 	Board weighed 	the 	employee 	organization's 	alternative 	means
of 	communicating 	with employees 	as 	one 	factor 	in deciding 	the
degree 	to which 	the 	legitimate 	concerns 	expressed by 	the
University 	should be 	found 	to 	justify 	limits 	on access.
In 	the 	instant 	case, 	the University has 	established no 	such
legitimate grounds 	for 	denying 	AFSCME access 	to the banner
space 	since 	each of 	its 	reasons 	for doing 	so has been 	found 	to
be 	groundless. 	Therefore, 	the 	fact 	that AFSCME had substantial
other 	means 	of access 	to 	employees 	at UCLA does 	not 	justify 	the
University's denial of banner 	space access. 	It 	is not 	for 	the
University 	to decide 	when an 	employee 	organization has
communicated 	sufficiently 	with 	employees 	in 	an 	election
campaign. 	The University's argument 	in 	this 	regard 	is
essentially 	that 	"enough 	is 	enough." 	In 	the absence 	of
legitimate business 	reasons 	for denying AFSCME 	the use 	of 	the
banner 	space, 	however, 	the 	fact 	that AFSCME had alternative
means 	of 	access does 	not 	eliminate 	its 	right under 	section 	3568
to use 	still 	other means 	of access.
For all 	the 	foregoing reasons, 	I 	find 	that 	the University's
failure 	to permit 	AFSCME to use 	the 	LeConte-Westwood banner
location 	for 	its 	election banner 	interfered with AFSCME's
access 	rights 	under 	section 	3568 and 	constituted a 	violation 	of
section 	3571(b). 	Interference 	with an 	employee organization's
26

access 	rights 	constitutes 	a 	concurrent 	interference 	with 	rights
granted 	employees 	under 	HEERA; 	therefore, 	the denial of access
also violated 	section 3571(a). 	UCLA Medical Center, 	supra.
REMEDY
Section 	3563.3 provides:
The board 	shall have 	the 	power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such affirmative
action, 	including, but not limited to, 	the
reinstatement 	of 	employees 	with 	or 	without
back pay, 	as will 	effectuate 	the policies 	of
this chapter.
The 	University will 	be 	ordered 	to cease 	and 	desist 	from
denying 	AFSCME access 	to 	the 	LeConte-Westwood banner 	space.
It 	also 	is 	appropriate 	that 	the 	University be 	required 	to post
a 	notice 	incorporating 	the 	terms of 	the 	order. 	The 	notice
should be 	subscribed by 	an 	authorized 	agent 	of 	the 	University
indicating 	that 	it 	will 	comply with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such a notice
will provide 	employees 	with notice 	that 	the 	University has
acted 	in 	an unlawful manner 	and 	is being 	required 	to cease 	and
desist 	from this 	activity. 	It effectuates 	the purposes of 	the
HEERA that 	employees 	be 	informed 	of 	the 	resolution 	of 	the
controversy 	and 	the 	University's 	readiness 	to 	comply with 	the
ordered 	remedy. 	See 	Placerville Union 	School 	District
(9/18/78) 	PERB Decision No. 	69; 	Pandol and Sons v. 	Agricultural
Labor Relations Bd. 	(1979) 	98 Cal.App.3d 580, 	587; 	NLRB v.
Express Publishing Co. 	(1941) 	312 U.S. 	426 [8 LRRM 415].
27

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case 	and pursuant 	to Government
Code 	section 	3563.3, 	it 	is hereby ORDERED that 	the University
of 	California 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Denying AFSCME rights 	guaranteed 	to 	it by 	section
3568 of 	HEERA by 	failing or 	refusing 	to 	grant 	AFSCME reasonable
access 	to banner 	space 	located 	at 	the 	intersection 	of LeConte
Avenue 	and Westwood Boulevard at 	UCLA; 	and
2. 	Interfering with, 	restraining 	or coercing
employees 	in 	the 	exercise of 	the 	rights guaranteed 	to 	them by
HEERA by 	failing 	or 	refusing 	to permit 	AFSCME to 	use 	the
above-cited 	banner 	space.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES OF 	THE HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
1. 	Within five 	(5) 	workdays after 	this decision
becomes 	final, 	prepare and post 	a copy of the NOTICE TO
EMPLOYEES attached as 	an Appendix hereto, 	for at 	least 	thirty
(30) 	consecutive workdays at conspicuous places at 	those
locations 	where 	NOTICES TO EMPLOYEES at UCLA are 	customarily
posted. 	The Notices 	must 	not 	be 	reduced 	in 	size and 	reasonable
steps 	should be 	taken to 	see 	that 	they are 	not 	defaced, 	altered
or 	covered 	by 	any 	material.
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2. 	Within twenty 	(20) 	workdays 	from 	service 	of 	the
final decision herein, 	give 	written notification to the Los
Angeles 	Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board 	of 	the 	actions 	taken to comply with 	this 	Order. 	Continue
to 	report 	in writing 	to 	the 	Regional 	Director 	thereafter 	as
directed. 	All 	reports 	to the 	Regional 	Director 	shall be
concurrently 	served 	on 	Charging 	Party herein.
Pursuant 	to California Administrative Code, 	title 8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final on 	April 	19 	, 	1984, 	unless a party 	files a
timely 	statement 	of 	exceptions. 	In accordance 	with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 8,
part 	III, 	section 32300. 	Such statement 	of exceptions and
supporting 	brief 	must be 	actually 	received by 	the 	Public
Employment 	Relations 	Board 	itself at 	the headquarters 	office 	in
Sacramento before 	the close 	of business 	(5:00 p.m.)
on 	April 	19, 	1984, 	or 	sent by 	telegraph 	or 	certified United
States mail, 	postmarked not 	later 	than 	the 	last day 	for 	filing
in order 	to be 	timely 	filed. 	See 	California Administrative
Code, 	title 8, 	part 	III, 	section 32135. 	Any statement of
exceptions 	and 	supporting brief 	must be 	served 	concurrently
with 	its 	filing 	upon each party to this proceeding. 	Proof of
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service 	shall be 	filed with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part 	III, 	section 32300 and 32305 •
Dated: 	March 30, 	1984
Marian Kennedy
Administrative 	Law 	Judge
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