Regents of the University of California (PERB 0783H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SOCIETY OF 	PROFESSIONAL 	SCIENTISTS
AND 	ENGINEERS,
Charging 	Party,
v.
REGENTS OF THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case No. 	SF-CE-284-H
PERB 	Decision No. 	783-H
December 	29, 	1989
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Appearances: 	Andrew Thomas 	Sinclair, 	Attorney, 	for Society of
Professional Scientists and Engineers; 	Susan M. 	Thomas, 	Attorney,
for Regents 	of 	the 	University of 	California.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Regents 	of 	the 	University of California 	(UC) 	to the proposed
decision, 	attached hereto, 	of a PERB administrative 	law judge
(ALJ). 	The ALJ found that the UC violated 	section 3571(a) 	and
(b)1 of the Higher Education Employer-Employee Relations Act
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code.
Section 3571 	states, 	in pertinent 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
employees 	because 	of 	their exercise of 	rights

(HEERA) 	in denying the 	Society of 	Professional 	Scientists 	and
Engineers 	(SPSE) 	access 	to 	its 	internal mail 	system at the
Lawrence 	Livermore 	Laboratory.
We 	have 	carefully reviewed the 	entire record, 	including the
proposed decision, 	transcript, 	exceptions and responses, 	and
finding 	the ALJ's 	findings 	of 	fact 	and conclusions 	of 	law 	free 	of
prejudicial 	error, 	we adopt them as 	the decision of 	the Board
itself. 	As 	to SPSE's and the UC's 	request 	for attorney fees, 	the
Board 	finds 	that 	the 	arguments 	raised by both parties 	are 	not
"without arguable merit," 	nor were the arguments 	made 	in bad
faith. 	(King City High School 	District Association et al. 	(1982)
PERB Decision No. 	197; 	Chula Vista School District 	(1982) 	PERB
Decision No. 	256.) 	Therefore, 	each party's request for attorney
fees 	is denied.
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 have violated 	section 	3571, 	subdivisions
(a) 	and 	(b) 	of the Higher Education Employer-Employee Relations
Act, 	by denying the 	Society of 	Professional 	Scientists 	and
Engineers 	access 	to 	the 	University's 	internal mail 	system within
the 	secured 	facilities 	at 	the 	Lawrence 	Livermore National
Laboratory.
guaranteed by this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
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It 	is 	hereby ORDERED that 	the 	University 	and 	its
representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Denying employee organizations 	access 	to 	its
internal mail 	system, 	within the 	secured facilities, 	at the
Lawrence 	Livermore 	National 	Laboratory.
(b) 	Interfering with employees' 	rights 	granted under
HEERA by 	refusing 	to 	allow their 	employee 	organizations 	access 	to
the 	University's 	internal 	mail 	system, 	within the 	secured
facilities, 	at the Lawrence Livermore National Laboratory.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
(a) 	Provide payment to the 	Society of 	Professional
Scientists 	and 	Engineers 	for 	funds 	expended 	on postage 	for
mailings 	sent 	through 	the 	University's 	mail 	system 	to 	employees
within the 	secured 	facilities 	of 	the 	Lawrence 	Livermore 	National
Laboratory. 	This 	award 	shall 	begin running 	six months 	prior to
the 	filing date of 	this 	charge and 	shall 	include 	interest, 	at 	the
rate 	of 	ten percent 	(10%) 	per annum, 	from the date the postage
costs 	were 	incurred.
(b) 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	post 	at
work 	locations 	where 	notices 	to 	employees 	are 	customarily placed
at 	the Laboratory, 	copies 	of 	the notice 	attached hereto 	as 	an
appendix. 	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
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period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall be taken to 	insure that the notice 	is 	not reduced 	in 	size,
altered, 	defaced or covered by any other material.
(c) 	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.
Chairperson Hesse 	and Member Craib 	joined 	in this 	Decision.
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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. 	SF-CE-284-H,
Society 	of 	Professional 	Scientists 	and Engineers 	v. 	Regents 	of
the 	University of California, 	in which all parties 	had 	the 	right
to participate, 	it has 	been found that 	the 	University violated
Government Code 	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 will abide by the following. 	We will:
1. 	CEASE AND DESIST FROM:
(a) 	Denying employee organizations 	access 	to 	the
University's 	internal 	mail 	system within 	the 	secured 	facilities
of 	the 	Lawrence 	Livermore 	National 	Laboratory.
(b) 	Interfering with employees' 	rights 	granted under
HEERA by 	refusing 	to 	allow their 	employee 	organizations 	access 	to
the 	University's 	internal 	mail 	system within the 	secured
facilities 	of 	the 	Lawrence Livermore National 	Laboratory.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
(a) 	Provide payment 	to 	the 	Society of 	Professional
Scientists 	and 	Engineers 	for 	funds 	expended 	on postage 	for
mailings 	sent 	through the 	University's 	mail 	system to 	employees
within the 	secured 	facilities 	of 	the 	Lawrence 	Livermore 	National
Laboratory. 	This 	award 	shall 	begin running 	six months 	prior 	to
the 	filing date of 	this 	charge and 	shall 	include 	interest, 	at the
rate of 	ten percent 	(10%) 	per annum, 	from the date the postage
costs 	were 	incurred.
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.
I)

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
SOCIETY 	OF 	PROFESSIONAL
SCIENTISTS AND ENGINEERS,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-284-H
PROPOSED 	DECISION
(6/8/89)
Appearances: 	Andrew Thomas Sinclair, 	Attorney, 	for Society of
Professional Scientists and Engineers; 	Susan M. 	Thomas, 	Attorney,
for Regents 	of the University of California.
Before James W. 	Tamm, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On October 	12, 	1988, 	the Society of Professional Scientists
and Engineers 	(hereafter SPSE 	or Charging Party) 	filed this
charge 	against 	the 	Regents 	of 	the 	University of California
(hereafter University). 	The charge alleges the University denied
SPSE 	its 	right to use the 	internal mail 	system of the
University's 	Lawrence Livermore National 	Laboratory, 	in violation
of section 3571(a), 	and 	(b) 	of the Higher Education Employer
Employee Relations Act 	(hereafter HEERA).1 On
1The 	HEERA is 	codified at Government Code 	section 	3560, 	et
seq. 	Section 3571 reads, 	in pertinent 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
employees 	because of 	their exercise 	of 	rights
guaranteed by this 	chapter.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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December 2, 	1988, 	a complaint was 	issued by the General Counsel's
office 	of 	the 	Public 	Employment 	Relations 	Board 	(hereafter PERB
or Board). 	A settlement conference was held, 	but the matter
remained unresolved. 	A 	formal 	hearing was 	completed February 	2,
1989. 	A transcript was prepared, 	briefs 	filed, 	and the case was
submitted for decision on May 24, 	1989.
FINDINGS 	OF 	FACT
Charging Party 	is 	an employee 	organization and 	is 	a non-
exclusive 	representative 	of 	employees 	at 	the University's
Lawrence 	Livermore National 	Laboratory 	(hereafter Laboratory).
There 	is 	no 	exclusive representative 	for those 	employees
represented 	by 	SPSE.
The 	Laboratory 	is 	administered 	under a 	contract between the
University 	and 	the 	United 	States 	government. 	The 	Laboratory work
consists 	of 	research, 	development and educational 	activities
related to the nuclear 	sciences, 	and to the use of 	energy in
selected 	military 	and peaceful 	applications.
The 	main Laboratory 	site 	is 	a highly 	secured 	facility 	of
approximately one 	square mile. 	No one 	is 	allowed within the
secured 	area without 	a 	high 	level 	security 	clearance 	from the
United States 	government. 	In addition to 	the 	Laboratory's 	main
site, 	there is a location known as 	site 300, 	which is
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter,.
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approximately 	fifteen miles 	from the 	Laboratory. 	An additional
site, 	known as the CDC building, 	is approximately one mile from
the Laboratory, 	and a warehouse 	is 	adjacent to the main
Laboratory 	facility. 	In addition, 	a 	limited number of 	Laboratory
employees 	are 	assigned 	to 	temporary 	locations 	throughout 	the
world. 	Approximately 	five percent 	of 	Laboratory 	employees 	work
at 	locations 	outside 	the main 	secured area.
Inside 	the 	secured area at the Laboratory, 	there are 	no
postal 	routes. 	All mail delivered 	inside the 	secured area,
through the University's 	mail 	system, 	is picked up outside the
secured 	area 	and 	then taken 	inside 	by 	a 	Laboratory 	employee with
a 	security clearance. 	It 	is 	then delivered to 	the designated
locations 	by Laboratory personnel with 	security clearances. 	The
delivery of mail within the 	secured area does 	not 	require 	the
crossing of 	any United States postal 	routes. 	When employees 	are
assigned to 	locations 	outside the 	secured area, 	their mail 	is
forwarded to 	them via postal 	routes 	by the 	Laboratory mail 	room.
On June 21, 	1988, 	Richard White sought, 	on behalf of
Charging Party, 	to 	send unstamped 	letters 	from the 	SPSE president
to 	SPSE 	members 	through the 	internal 	Laboratory mail 	system. 	The
purpose 	of 	the 	letter was 	to 	inform members 	of 	a meeting to be
held 	in July 	1988 	and to 	test 	the 	Laboratory's willingness 	to
deliver unstamped union mail. 	On June 28, 	1988, 	Robert Perko,
division 	leader of 	the Laboratory's 	Office of 	Staff 	Relations,
notified 	the 	Charging Party 	that 	the 	Laboratory would 	not 	deliver
SPSE 	mail 	through 	its 	internal 	mail 	system without proper 	United
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States postage. 	SPSE then affixed United States postage 	to 	the
letters 	and mailed them at the Livermore 	Post Office. 	The
letters 	were 	then delivered 	to 	SPSE 	members 	through 	the
Laboratory mail 	system. 	SPSE has 	mailed 	flyers 	to 	its 	200
members 	approximately three to 	five 	times 	during the past year.
Laboratory policy2 states 	that 	the 	Laboratory mail 	system
may not 	be 	used 	for 	other than official 	Laboratory business 	and
the distribution of United States mail. 	There were, 	however,
examples 	of 	third parties 	having access 	to the 	internal
Laboratory mail 	system 	for both 	commercial 	and 	social 	messages.
For 	instance, 	an advertisement 	soliciting membership 	in a 	local
swimming 	club was 	delivered 	to 	Laboratory 	employees 	through 	the
Laboratory mail 	system, 	as was 	a commercial 	advertisement 	for the
sale 	of 	computer 	equipment. 	Both were delivered 	to 	employees
without having United States 	postage affixed to the mail. 	The
mail 	services 	group 	leader 	at 	the 	Laboratory testified 	that 	these
examples were mistakes, 	and were not 	consistent with the training
given to 	Laboratory mail 	system employees.
The 	total volume of mail processed 	each day at 	the
Laboratory 	is 	approximately 	32,000 pieces, 	or between 	seven and
eight million pieces per year. 	The 	group 	leader testified
however, 	that even a mailing as 	limited as 	SPSE's 	newsletter to
200 	employees would 	create 	a burden upon the 	system because 	it
would create more work. 	The mail 	system at the Laboratory 	is
2Laboratory 	Personnel 	Policies 	and Procedures 	Manual
section 	J.II.5.
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currently 	suffering 	from understaffing due 	to 	budgetary-
constraints. 	One 	staff position was 	transferred and an open
position was 	frozen. 	Furthermore, 	since the mail 	room gives
intra-Laboratory mail 	a higher priority 	than 	first 	class 	mail
coming through the 	United States postal 	system, 	additional 	intra-
Laboratory 	employee 	organization mail 	could 	create 	a burden on
the mail 	room in meeting its 	set priorities.
Dr. 	Calvin Andre of SPSE testified that, 	because the cost of
United States 	postage 	is 	such a 	small portion of 	the 	cost
attributed to 	each mailing, 	the 	number of 	SPSE mailings 	each year
would probably not 	increase appreciably, 	even if 	the postage was
not 	required.
Employee 	organizations 	have 	several 	other avenues 	of 	access
to 	employees 	at 	the Laboratory. 	They may 	schedule 	rooms 	for
conducting employee meetings. 	They may 	set up tables 	and
portable easels 	at 	certain locations within the Laboratory, 	and
may post 	literature on bulletin boards. 	They may hand out
literature 	and personally discuss 	issues with employees. 	They
are able to 	set up boxes 	in certain areas 	of the Laboratory,
where 	they 	can keep 	stacks 	of 	literature 	available 	for 	employees
to 	select, 	as 	they pass by. 	They also have access to home
addresses of employees, 	so they may mail 	literature directly to
employees 	at home. 	Organizations 	may also place 	literature
directly in individual mail boxes. 	Finally, 	the Laboratory will
deliver the mail 	through the 	internal mail 	system 	if 	United
States postage 	is 	affixed.
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ISSUE
Did the University violate HEERA section 3571(a) 	and 	(b) 	by
denying 	the 	Charging 	Party 	access 	to 	the 	University's 	internal
mail 	system at 	the 	Lawrence 	Livermore National 	Laboratory?
DISCUSSION
HEERA 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.
In 	interpreting this 	section, 	the Board first required
employee 	organization access 	to 	the 	University's 	mail 	system 	in
University of California at Berkeley 	(Wilson) 	(1981) 	PERB
Decision No. 	183-H. 	This holding was 	consistent with its 	earlier
interpretation of 	nearly 	identical 	language 	in the 	Educational
Employment Relations Act 	(EERA) 	. 	Richmond Unified School
District 	and 	Simi Valley Unified 	School 	District 	(1979) 	PERB
3The EERA 	is 	codified 	at Government Code 	section 	3560 	et
seq. 	Section 3543.l(b) 	states:
Employee 	organizations 	shall 	have the right
of access 	at reasonable times 	to areas 	in
which employees work, 	the right to use
institutional bulletin boards, 	mailboxes, 	and
other means of communication, 	subject to
reasonable regulation, 	and the right to use
institutional 	facilities 	at 	reasonable 	times
for the purpose of 	meetings 	concerned with
the 	exercise of 	the 	rights 	guaranteed by this
chapter.
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Decision No. 	99. 	In that decision, 	the Board held that the
Legislature 	intended to 	include use 	of 	internal 	school mail
systems 	as 	one of the 	"other means 	of 	communications" 	available
to 	employee 	organizations
In University of California at Berkeley 	(Wilson). 	supra, 	the
Board 	rejected 	several 	University defenses. 	Among 	them:
(1) 	HEERA does 	not require the University to deliver
unstamped 	employee 	organization mail 	through 	the
University's 	internal 	mail 	system;
(2) 	numerous alternative methods of access are available to
employee organizations; 	and
(3) 	mandating employee organization access 	to the
University's 	mail 	system would be burdensome 	to 	the
University, 	therefore, 	denial of access is 	justified by
operational 	necessity.
The 	Board declined 	to 	rule 	on the 	applicability 	of 	the
Private 	Express 	Statutes4 to employee organization access 	rights.
On appeal, 	the court remanded the case to the 	Board to 	consider
the 	effect of 	the 	federal 	law upon its 	earlier decision. 	Regents
of 	the 	University of California v. 	Public 	Employment Relations
Board 	(1983) 	139 Cal.App.3d 	1037 	[189 Cal.Reptr. 	298]
On remand, 	the 	Board determined that 	exceptions 	to 	the
Private 	Express 	Statutes 	allowed the 	University to 	carry
418 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.
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unstamped 	employee 	organization mail 	through 	its 	internal 	mail
system. 	The Board once 	again rejected all 	the 	University's
defenses 	based upon the burden to the mail 	system, 	the
availability of 	alternative 	access 	methods, 	and 	interpretations
of HEERA access provisions. 	University of 	California 	at 	Berkeley
(Wilson) 	(1984) 	PERB Decision No. 	420-H, 	affirmed 	182 Cal.App.3d
71. 	[227 Cal.Rptr. 	57]
That decision was 	ultimately appealed 	to 	the 	United 	States
Supreme 	Court which held 	that 	the 	Private 	Express 	Statutes
prevented 	the 	University 	from 	carrying 	unstamped 	union 	mail
through 	its 	internal 	mail 	system when 	it 	crossed 	United 	States
postal 	routes, 	and would therefore 	compete with the 	United States
Postal 	Service. 	Regents 	of the University of California v.
Public 	Employment Relations 	Board 	(1988) 	485 	US 	[99 L.Ed. 	2d
664, 	108 	S.Ct. 	1404].
Both the 	California 	Court 	of Appeal 	and the 	United 	States
Supreme 	Court 	limited their 	review to 	the 	applicability 	of
Private 	Express 	Statutes 	and did 	not 	reverse 	the 	Board's
rejection of other University defenses. 	In its most recent
decision on this 	issue, 	University Council. 	AFT v. 	Regents of the
University of California 	(1989) 	PERB Decision No. 	725-H, 	(AO45723
app.pending) 	the Board re-asserted 	its 	earlier rejection of 	the
University defenses which were 	not 	based upon Private 	Express
Statutes. 	Thus, 	to the extent that it does not conflict with
Private Express 	Statutes by crossing postal 	routes, 	the
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University 	is 	still 	required 	to 	deliver unstamped mail 	of
employee 	organizations 	through 	the 	University mail 	system.
There 	is 	nothing in the 	record of 	this 	case 	justifying a
departure 	from the 	Board's 	earlier holding that 	employee
organizations 	should have 	access 	to 	the 	University's 	internal
mail 	system.55 Evidence 	of 	alternative means 	of 	an employee
organization's 	access 	to 	employees 	does 	not 	justify denial 	of
employee 	organization access 	to the mail 	system. 	The 	Board has
consistently 	rejected that 	defense 	in 	situations 	where
alternative 	means 	of 	communication were 	less 	restrictive 	than
this 	case. 	Here, 	where many alternative means of communications
are 	tempered by 	stringent 	security 	restrictions 	at 	the
Laboratory, 	alternative means provide even less 	justification
than 	in earlier Board cases 	for denying access 	to 	the mail
system. 	In both of 	the 	University of California 	at 	Berkeley
(Wilson). 	supra. 	cases and University Council. AFT v. 	Regents of
the University of California, 	supra. 	as well as Richmond Unified
School 	District 	and 	Simi Valley 	Unified 	School 	District f 	supra.
the 	Board rejected the 	argument 	that 	alternative 	means 	of
communications 	justifies 	denial 	of 	access 	to a particular means
of 	communication. 	The 	Board held that the right of 	access
5The 	evidence 	that the mail 	system has been used, 	postage
free, 	by other outside entities 	is 	not relied upon in this 	case
as 	a basis 	for extending access 	to 	the 	system to 	employee
organizations. 	The 	limited number of 	examples 	of 	outside
organizations' 	use of the mail 	system appears 	to be evidence of
simple mistakes 	made by 	employees 	trying 	to 	grapple with millions
of pieces 	of mail 	each year. 	Such use 	is 	contrary to both
University policy 	and training 	given to 	mail 	system 	employees 	and
does 	not 	reflect disparate 	treatment of 	employee organizations.
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extends 	to 	each 	statutorily recognized method 	of 	communication
and that 	alternative 	methods 	are 	relevant 	only when a particular
means 	is 	shown to be disruptive or burdensome. 	University
Council. 	AFT v. 	Regents of the University of California, 	supra at
p.8-9.
There 	is 	also no greater 	showing of 	any burden to the mail
system here, 	than in any previous 	Board decision. 	The 	few
hundred pieces 	of 	SPSE mail 	sent through the 	system pales 	in
comparison to the yearly 	seven to 	eight million pieces 	of 	other
Laboratory mail. 	Even if the amount of 	employee organization
mail 	increases due to 	increased SPSE mailings, 	or additional
employee organizations 	utilizing the 	system, 	that mail would be
no more burdensome than an increase 	in mail 	sent by any
University department. 	Furthermore, 	if United States postage
were affixed, 	the University admits 	that all 	employee
organization mail would be 	accommodated by 	the 	system. 	The
issue, 	therefore, 	is not the burden to the 	system, 	but rather the
cost to the employee organizations.
The 	University 	also 	argues 	that any 	additional 	mail 	creates
a 	burden on the 	system because 	the 	system 	suffers 	from 	severe
budgetary constraints. 	Because of those budgetary problems, 	one
staff 	position was 	transferred 	and 	an open position was 	frozen.
According to the University, 	this understaffing, 	in conjunction
with a high volume of mail, 	creates problems 	in meeting 	its
delivery objectives. 	This argument, 	however, 	is unpersuasive.
The 	University 	can not 	avoid 	its 	legal 	obligation to 	allow
10

employee 	organization access 	to the mail 	system because 	of
understaffing in the mail 	room, 	any more than it can avoid 	its
collective 	bargaining 	obligations 	under 	HEERA by understaffing
its 	employee relations 	function.
The 	University also 	argues 	it will be difficult 	to 	ensure
that 	unstamped 	employee 	organization mail will 	be 	limited 	to
areas without postal routes. 	However, 	this decision is 	limited
by the 	facts 	of this 	case, 	to an area where there are no postal
routes whatsoever. 	It will be no more burdensome to the mail
system to 	refuse 	to 	forward mail 	to 	locations 	outside 	the
Laboratory 	secured area, 	than it has been in the past 	for the
Laboratory to refuse to deliver all unstamped Union mail.6
While 	the 	record 	supports 	a 	finding that 	any additional
mail, 	from any source, 	would increase the burden upon an already
busy 	system, 	the 	evidence does 	not demonstrate that unstamped
employee 	organization mail will 	unduly burden the 	system to 	the
point of 	justifying 	its 	exclusion.
CONCLUSION
Since the Lawrence Livermore National Laboratory 	is 	a
secured 	facility without 	any United 	States 	postal 	routes 	on 	its
grounds, 	delivery of unstamped 	employee 	organization mail within
the 	facility would not 	conflict with Private Express 	Statutes.
The Charging Party, 	therefore, 	has a right of access to the mail
Many of 	the 	University's 	arguments were more 	appropriate 	to
a 	systemwide case. 	Because this 	case is 	not systemwide, 	but
rather one 	limited 	to a 	single 	location without 	any postal
routes, 	it is unnecessary to deal with the University's
systemwide arguments.
66
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system within the 	secured 	facilities 	at 	the Laboratory. 	The
University's 	failure 	to deliver SPSE's 	unstamped mail 	is
therefore a violation of 	section 3571(a) 	and 	(b).
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 Charging 	Party 	access 	to 	its 	internal 	mail
system for unstamped mail, 	it will 	be ordered to 	cease 	and desist
from denying 	such 	access 	for 	the purpose 	of 	communication with
employees 	at 	the 	secured 	facilities 	of 	the Lawrence 	Livermore
National 	Laboratory.
Under the circumstances presented here, 	it 	is 	also
appropriate 	to 	order 	the 	University to make 	the Charging 	Party
whole 	for losses 	incurred because 	of 	the violation. 	This 	shall
consist of 	the 	cost of postage 	the Charging Party has 	expended 	in
its 	mailings 	to Laboratory employees. 	This 	remedy 	shall begin
running 	six 	(6) 	months prior to the 	filing date of 	this 	charge
and shall 	include interest, 	at the rate of ten percent 	(10%) 	per
annum, 	from the date the postage costs were 	incurred.
In addition, 	it is appropriate that the University be
required 	to post 	a 	notice 	at 	the 	Laboratory 	incorporating 	the
terms 	of 	the order. 	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 activity. 	It 	effectuates 	the purposes 	of 	HEERA that
-. .
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employees 	be 	informed of 	the resolution of 	the 	controversy, 	and
the posting will 	announce 	Respondent's 	readiness 	to 	comply with
the 	ordered 	remedy. 	See 	Placerville Union School 	District 	(1978)
PERB Decision No. 	69. 	In Pandol and Sons v. 	Agricultural Labor
Relations Board 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr.
584], 	the California District Court of Appeal approved a 	similar
posting requirement. 	See also NLRB v. 	Express 	Publishing Co.
(1941) 	312 U.S. 	426 	[8 LRRM 415].
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 have violated 	section 	3571, 	subdivisions
(a) 	and 	(b) 	of the Higher Education Employer-Employee Relations
Act 	by denying the 	Society of 	Professional 	Scientists 	and
Engineers 	access 	to 	the University's 	internal mail 	system within
the 	secured 	facilities 	at 	the 	Lawrence 	Livermore National
Laboratory.
It 	is 	hereby ORDERED that the 	University and 	its
representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Denying employee organizations 	access 	to 	its
internal mail 	system, 	within the 	secured facilities, 	at the
Lawrence 	Livermore 	National 	Laboratory.
(b) 	Interfering with employees' 	rights granted under
HEERA by 	refusing to 	allow their 	employee 	organizations 	access 	to
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the University's 	internal mail 	system, 	within the 	secured
facilities, 	at the Lawrence Livermore National Laboratory.
2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF 	THE ACT:
(a) 	Provide payment to the Society of
Professional 	Scientists 	and Engineers 	for 	funds 	expended on
postage, 	for mailings 	sent through the University's 	mail 	system
to 	employees 	within the 	secured 	facilities 	of 	the 	Lawrence
Livermore National 	Laboratory. 	This 	award 	shall begin running
six months prior to the 	filing date of this 	charge and 	shall
include 	interest, 	at the rate of ten percent 	(10%) 	per annum,
from the date 	the postage 	costs were 	incurred.
(b) 	Within ten 	(10) 	workdays 	of 	service of a final
decision in this matter, 	post at work locations where notices 	to
employees 	are 	customarily placed at the 	Laboratory, 	copies 	of 	the
notice attached hereto as 	an appendix. 	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 the notice 	is 	not reduced in size, 	altered, 	defaced or
covered by 	any other material.
(c) 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	the Order 	to 	the
San Francisco 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions.
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Pursuant to California Administrative Code, 	title 8, 	part
III, 	section 32305, 	this 	Proposed Decision and Order shall become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or 	exhibit number the portions 	of 	the record, 	if 	any,
relied upon 	for 	such exceptions. 	See California Administrative
Code, 	title 8, 	Part III, 	section 32300. 	A document is considered
"filed" 	when actually received before 	the 	close 	of 	business
(5:00 p.m.) 	on the last day set for filing. 	". 	. 	. o r when sent
by 	telegraph 	or 	certified 	or 	Express 	United 	States 	mail,
postmarked not later than the last day set for filing 	. 	. 	. 	."
See California Administrative Code, 	title 8, 	part III, 	section
32135. 	Code of Civil Procedure 	section 	1013 	shall apply. 	Any
statement 	of 	exceptions 	and 	supporting brief 	must be 	served
concurrently with 	its 	filing upon each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served on a party 	or
filed with the Board 	itself. 	See California Administrative Code,
title 8, 	part III, 	sections 32300, 	32305 and 32140.
Dated: 	June 8, 	1989 JAMES W. TAMM
Administrative 	Law Judge
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