Regents of the University of California (University of California, American Federation of Teachers) (PERB 0725H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
UNIVERSITY COUNCIL, 	AFT,
LOCALS 2034, 	2199, 	1990, 	1474,
2141, 	1966, 	2226, 	1795 and 2023,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case No. 	SF-CE-44-H
PERB 	Decision No. 	725-H
March 	21, 	1989
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Appearances: 	Steiner & Gerstein by Robert S. 	Gerstein, 	Attorney,
for University Council, AFT, Locals 2034, 2199, 	1990, 	1474, 	2141,
1966, 	2226, 	1795 and 2023; 	Susan M. 	Thomas, Attorney, 	for
Regents 	of 	the University of California.
Before Craib, 	Shank and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Regents 	of 	the University of California 	(University) 	to the
proposed decision of 	a PERB 	administrative 	law 	judge 	(ALJ)
finding 	that 	the 	University 	unlawfully 	denied 	University 	Council,
AFT, 	Locals 2034, 	et. 	al 	(U.C.-AFT) 	access to the University's
internal 	mail 	system. 	This 	conduct was 	found to have violated
section 3571, 	subdivisions 	(a) 	and 	(b) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA).1
HEERA 	is 	codified at Government Code 	section 3560 	et 	seq.
All 	references 	are 	to 	the Government Code unless 	otherwise
specified. 	Subdivisions 	(a) 	and 	(b) 	of section 3571 	state:
It 	shall 	be unlawful 	for the higher education employer
to:
______________ )

PROCEDURAL 	HISTORY
The 	original 	unfair practice 	charge 	concerned only 	access 	to
the 	University's mail 	system at 	its 	San Diego 	campus. 	The 	charge
was 	later 	amended 	to 	include 	allegations 	that 	the 	University had
also 	refused access 	to 	the mail 	system at 	its 	Riverside,
Berkeley, 	Davis 	and 	Irvine 	campuses. 	The amended charge 	also
alleged 	that 	this 	denial 	of 	access 	represented a 	systemwide
policy of 	the 	University. 	An additional 	allegation concerning
the opening of mail 	at the Davis 	campus was 	later withdrawn. 	The
University, 	in its 	answer to the amended charge, 	admitted the
denial 	of access 	to the mail 	systems 	at the named campuses 	and
admitted that 	this 	represented 	a 	systemwide policy.
Finding that there were no triable issues 	of 	fact, 	the ALJ
decided 	the 	case 	on a motion 	for 	summary 	judgment 	filed by
U.C.-AFT. 	Thus, 	the 	sole 	issue decided was whether it was 	a
violation of 	HEERA 	for the 	University to 	refuse 	to 	allow U.C.-AFT
to 	send 	mail 	through the 	University mail 	system without 	first
paying 	United 	States 	postage.
(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

In defense of its denial of access 	to the mail 	system, 	the
University put 	forth 	several 	affirmative defenses, 	which may be
summarized as 	follows:
1. 	The Private Express 	Statutes2 prohibit the University
from 	carrying unstamped 	employee 	organization mail.
2. 	HEERA does 	not grant to 	employee organizations 	the 	right
to 	have 	their unstamped mail 	carried 	through 	the 	University's
mail 	system.
3. 	There are numerous 	and extensive alternative means 	of
access 	available 	to 	employee 	organizations.
4. 	Since use of the mail 	system by employee organizations
would be burdensome, 	the denial 	of 	access 	is 	justified by
operational 	necessity.
The ALJ 	found no merit 	in any of 	the 	University's 	defenses
because 	the 	same 	arguments 	had been 	considered 	and 	rejected by
the Board 	itself 	in University of 	California 	at 	Berkeley 	(Wilson)
(1981) 	PERB Decision No. 	183-H. 	In that decision, 	the Board
declined to 	consider the 	effect 	of 	the Private 	Express 	Statutes
upon access 	rights 	under HEERA. 	Decision No. 	183-H was 	appealed
and was 	pending before the 	First District Court 	of Appeal when
the ALJ 	issued his 	proposed decision 	in the 	instant 	case. 	Later,
the Court of Appeal, 	noting that HEERA access 	rights 	are 	subject
218 U.S.C, 	sections 	1693-1699; 	39 U.S.C. sections 	601-606.
These 	statutes 	establish 	the postal 	monopoly of 	the 	United 	States
Postal 	Service 	and 	generally prohibit 	the private 	carriage 	of
letters 	over postal 	routes without the payment of postage.
w
	3

to 	"reasonable 	regulations,"3 found 	that 	the 	Board had 	erred by
failing 	to 	consider 	the 	effect 	of 	federal 	law and 	remanded 	to 	the
Board 	for that determination. 	(Regents 	of the University of
California v. 	Public 	Employment Relations Board 	(1983) 	139
Cal.App.3d 	1037 	[189 	Cal.Rptr. 	298]).
On remand, 	the 	Board 	then 	issued University of 	California 	at
Berkeley 	(Wilson) 	PERB Decision No. 	420-H, 	in which the Board
determined that 	various 	exceptions 	to 	the 	Private 	Express
Statutes 	applied to 	the 	University's 	carriage 	of 	unstamped
employee organization mail. 	Consequently, 	the Board 	concluded
that 	the 	Private Express 	Statutes 	placed no 	limits 	upon the
access 	rights 	granted under HEERA. 	As 	it had 	in Decision No.
183-H, 	the Board 	in Decision No. 	420-H also rejected University
defenses 	not based on the Private Express 	Statutes.
The 	Board's 	holding 	concerning the 	effect 	of 	the 	Private
Express 	Statutes was 	again appealed to 	the First 	District Court
of Appeal, 	which affirmed the Board's decision. 	(Regents 	of the
University of California 	v. 	Public 	Employment Relations 	Board
3HEERA 	section 	3568 	states:
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.
A	4

(1986) 	182 Cal.App.3d 71 	[227 Cal. 	Rptr. 	57]). 	The California
Supreme 	Court 	denied 	the 	University's 	petition 	for 	review.
However, 	the case was then appealed to the U.S. 	Supreme Court,
which reversed the California Court 	of Appeal. 	(Regents 	of 	the
University of 	California v. 	Public 	Employment 	Relations 	Board
(1988) 	485 	U.S. 	[99 L. 	Ed. 	2d 664, 	108 S. Ct. 	1404]
(hereafter U.C.Regents).	-----· 4 The 	court held that neither the
"Letters 	of 	the Carrier" 	nor the 	"Private Hands Without
Compensation" 	exceptions 	to 	the Private 	Express 	Statutes
permitted 	the 	University to 	carry unstamped 	union 	letters 	in 	its
internal mail 	system.S 	As 	a result, 	access 	rights under HEERA
are 	restricted by the operation of 	the Private Express 	Statutes.
DISCUSSION
In its 	exceptions to the ALJ's proposed decision, 	the
University 	argues 	that 	this 	case 	should 	simply be 	dismissed 	in
light of the U.S. 	Supreme Court's decision in U.C. 	Regents.
U.C.-AFT, 	in its response, 	argues that the U.C. 	Regents case
should be 	restricted to 	its 	facts 	and attempts 	to distinguish the
instant 	case. 	U.C.-AFT's 	contention will 	be 	addressed 	first.
4Though 	the proposed 	decision 	in the 	instant 	case was 	issued
in 	1982, 	the matter has 	only recently come before the Board
itself. 	The parties were granted a 	series 	of 	extensions 	of 	time
to 	file 	exceptions 	to 	the proposed decision while 	the
University's 	appeals 	of 	PERB 	Decision No. 	420-H wound their way
through the 	courts.
5The 	Board had relied 	on both 	exceptions 	in 	its 	decision,
while the California Court of Appeal, 	finding the 	"Letters 	of the
Carrier" 	exception applicable, 	did not address 	the 	"Private 	Hands
Without Compensation" 	exception.
5

U.C.-AFT argues 	that U.C. 	Regents 	is distinguishable because
that 	case 	involved 	an organizin
- g 	effort 	by a 	nonexclusive
representative, 	while the present 	case 	involves 	mail 	sent by an
exclusive 	representative 	in an 	effort 	to 	maintain harmonious
relations 	between the employer and the union. 	Therefore,
U.C.-AFT asserts, 	the U.S. 	Supreme Court's holding that the
union's 	mail did not 	concern the 	"current business" 	of 	the
University (and thus 	did not 	fall within the 	"Letters 	of 	the
Carrier" 	exception to the Private Express 	Statutes) 	is not
controlling 	in the present 	case.
While U.C.-AFT asserts 	that the 	language of the U.C. 	Regents
decision 	indicates 	that 	it 	should be restricted to the 	facts 	of
that 	case 	(i.e., 	an organizing effort by a nonexclusive
representative), 	in our review of that decision, 	we have found no
language 	that warrants 	such a narrow reading. 	The 	Court began
its 	opinion by describing the 	issue before 	it 	in the 	following
fashion: 	"This 	case presents 	the question of whether a 	state
university's 	delivery of 	unstamped 	letters 	from a 	labor union 	to
university 	employees 	violates 	the 	Private 	Express 	Statutes"
(emphasis added) 	(99 L.Ed.2d at p.669). 	Moreover, 	in the several
places where the Court 	states 	its holding, 	it 	speaks generally of
the use of 	internal mail 	systems by 	"labor unions" 	or 	"the 	Union"
and does 	not mention the union's 	nonexclusive 	status 	nor 	its
organizing efforts. 	Perhaps 	most revealing 	is 	the absence of 	any
reference 	to 	the 	union's 	nonexclusive 	status 	or organizing
efforts 	in the Court's 	discussion of whether the 	"Letters 	of 	the
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Carrier" 	exception allowed the 	carriage of 	the union's 	letters.
In rejecting the applicability of 	that exception, 	the Court
concluded 	that 	the union's 	letters 	did not 	relate 	to 	the 	"current
business" 	of the University 	(99 L.Ed.2d at pp. 	671-673). 	We
conclude 	that 	the Court's 	decision 	is 	most 	fairly 	read to
encompass all union "letters" 	and, 	therefore, 	it is equally
applicable to 	the present 	case.
The 	University's 	assertion that 	this 	case 	should be
dismissed 	in 	its 	entirety 	ignores 	the 	fact 	that 	the 	only 	issue 	on
appeal 	from PERB Decision No. 	420-H was 	the effect of the Private
Express 	Statutes 	on the 	right 	of 	access 	to 	internal 	mail 	systems
granted under HEERA. 	That was 	the 	only 	issue addressed by the
California Court of Appeal 	in its 	review of Decision No. 	420-H
and 	the 	only 	issue 	addressed by the U.S. 	Supreme Court 	in its
review of the Court of Appeal's decision. 	Therefore, 	PERB
Decision No. 	420-H 	remains 	as 	established precedent 	under HEERA,
with 	the 	exception of 	its 	holding 	concerning the 	effect 	of 	the
Private Express 	Statutes. 	Accordingly, 	access to the
University's 	internal 	mail 	system must 	still be 	afforded 	to 	those
unstamped union mailings which 	fall 	outside 	the 	scope 	of 	the
postal monopoly, 	subject, 	of course, 	to any other limitations
arising under 	HEERA 	section 	3568.
In addition to 	its 	reliance on the Private Express 	Statutes,
the 	University has 	defended 	its 	denial 	of 	access 	by 	asserting
that HEERA does 	not grant access 	to 	internal mail 	systems, 	that
such 	access 	would be 	burdensome 	and 	that 	there 	are 	alternative
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means 	of 	access 	available to employee organizations. 	As 	noted
above, 	these 	arguments were 	considered and rejected by the 	Board
in PERB Decision No. 	183-H 	(relied on by the ALJ) 	and 	in the
decision that 	later replaced it, 	PERB Decision No. 	420-H.
In PERB Decision No. 	420-H, 	the Board held that HEERA
provided 	employee 	organizations 	the 	right 	to 	use 	internal 	mail
systems, 	subject to the reasonable regulation proviso of 	section
3568. 	This was 	consistent with a previous 	interpretation of
nearly 	identical 	language 	in the 	Educational 	Employment 	Relations
Act. 	(Richmond 	Unified 	School 	District 	and 	Simi Valley 	Unified
School District 	(1979) 	PERB Decision No. 	99.)
The Board, 	in Decision No. 	420-H, 	also rejected the
University's 	argument that granting 	access 	to 	its 	internal 	mail
system would be unduly burdensome. 	The 	Board 	found 	the purported
burden to be merely 	speculative. 	There 	is 	no reason to 	find
otherwise here, 	especially in light of the 	severe restrictions 	on
access 	that were mandated by the U.S. 	Supreme Court 	in U.C.
Regents. 	Moreover, 	access remains 	subject to other forms of
"reasonable regulation" 	pursuant to 	section 3568.6
The 	Board has 	also previously 	rejected 	the 	University's
argument 	that 	the 	existence 	of 	alternative means 	of 	communication
justifies 	denial of 	access 	to a particular means 	of
communication. 	In PERB Decision No. 	420-H, 	the Board held that
6With 	the 	exception of 	the 	issues 	raised by 	the 	University's
defenses, 	we need not determine 	in this 	case what 	constitutes
"reasonable regulation" 	under 	section 3568, 	and we decline to do
so.
8

the 	right 	of 	access 	extends 	independently 	to 	each 	statutorily-
recognized means 	of 	communication and 	that 	the 	availability
of 	alternative means 	of 	communication becomes 	relevant 	only when
a particular means 	is 	shown to be disruptive or burdensome.
CONCLUSION
In 	sum, 	we affirm the ALJ's proposed decision finding that
the 	University 	unlawfully 	denied 	U.C.-AFT 	access 	to 	its 	internal
mail 	system, 	however, 	such access must be in compliance with the
Private 	Express 	Statutes 	and applicable postal 	regulations.
Consistent with the discussion above, 	the right of 	access 	is
further 	subject to 	"reasonable regulation" 	within the meaning of
HEERA 	section 	3568.
ORDER
Based upon the 	foregoing 	facts, 	conclusions 	of 	law and the
entire record in this case, 	it 	is 	found that the Regents 	of 	the
University of California 	(University) 	has 	violated 	section 	3571,
subdivisions 	(a) 	and 	(b) 	of the Higher Education Employer-
Employee Relations Act by denying University Council, 	AFT, 	Locals
2034, 2199, 	1990, 	1474, 	2141, 	1966, 2226, 	1795 and 2023 access to
the University's 	internal mail 	system. 	However, 	such access 	is
limited by the 	operation of 	the Private 	Express 	Statutes 	and
applicable postal regulations, 	as well as by other 	"reasonable
regulations" 	within the meaning of HEERA section 3568. 	It 	is
hereby ORDERED 	that 	the 	University 	and 	its 	representatives 	shall:
9

A. 	CEASE AND DESIST FROM:
1. 	Denying employee organizations access, 	as 	limited above,
to 	its 	internal mail 	system;
2. 	Interfering with employees' 	rights 	granted under HEERA
by 	refusing 	to 	allow their 	employee 	organizations 	access 	to 	the
University's 	internal 	mail 	system.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS WHICH ARE 	NECESSARY
TO 	EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION EMPLOYER-
EMPLOYEES 	RELATIONS ACT:
1. 	Within thirty-five 	(35) 	days 	following the date this
Decisions 	is 	no 	longer 	subject 	to 	reconsideration pursuant 	to
PERB Regulation 32410, 	post copies 	of the Notice, 	attached hereto
as 	an Appendix, 	at 	its headquarters 	office and at all 	locations
where notices 	to 	employees 	are 	customarily placed. 	The Notice
must be 	signed by an authorized 	agent 	of 	the 	University
indicating 	that 	the 	University will 	comply with 	the 	terms 	of 	this
Order. 	Such posting 	shall be maintained 	for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable 	steps 	shall be taken to
insure that 	said Notices 	are not reduced 	in 	size, 	altered,
defaced 	or 	covered by 	any 	other materials.
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.
Members 	Shank and Camilli 	joined 	in this 	Decision.
10

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-44-H,
University Council. AFT. 	Locals 2034. 	2199, 	1990, 	1474, 	2141,
1966. 	2226. 	1795 and 2023 v. 	Regents of the University of
California, 	in which all parties 	had the right to participate, 	it
has 	been 	found 	that 	the 	University 	violated 	section 	3571,
subdivisions 	(a) 	and 	(b) 	of the Higher Education Employer-
Employee Relations Act 	(HEERA).
As 	a result of 	this 	conduct, 	we have been ordered to post
this Notice, 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Denying employee organizations 	access pursuant 	to
HEERA section 3 5 68, 	as 	limited by Order of the Public Employment
Relations Board, 	to the University's 	internal mail 	system;
2. 	Interfering with employees' 	rights 	granted under
HEERA by 	refusing 	to 	allow their 	employee 	organizations 	access 	to
the 	University's 	internal 	mail 	system.
Dated: 	REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA
By
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.