Long Beach Unified School District (PERB 0721E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEACHERS ASSOCIATION OF LONG BEACH,
Charging 	Party,
v.
LONG BEACH UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-1151
PERB 	Decision 	No. 	721
March 3, 	1989
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Appearances: 	A. 	Eugene Huguenin, 	Jr., Attorney, 	and Jerry B.
Allen, 	Law Clerk, 	for Teachers Association of Long Beach;
McLaughlin and 	Irvin by Lawrence 	J. 	McLaughlin 	for 	Long Beach
Unified 	School 	District.
Before Hesse, Chairperson; Craib, 	Shank, 	and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB 	or 	Board) 	on exceptions 	filed by
the 	Long Beach 	Unified 	School 	District 	(District) 	to 	the 	attached
proposed decision of an administrative 	law judge 	(ALJ) 	finding
that the District violated section 	3543.5(a) 	and 	(b) 	of the
Educational 	Employment Relations Act 	(EERA)1 by adopting and
1EERA is 	codified at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	Section 3543.5 reads, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
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.
(b) 	Deny to employee organizations rights

enforcing 	unreasonable 	regulations 	governing 	the 	use 	of 	the
District's -internal 	mail 	system by employee 	organizations. 	We
have reviewed the 	entire record, 	including the ALJ's 	proposed
decision, 	the 	District's 	exceptions 	and the responses 	thereto.
As we 	find the ALJ's 	findings 	of 	fact 	free 	from prejudicial
error, 	we adopt them as 	our own. 	The 	following is 	a brief
summary of 	the pertinent 	facts.
guaranteed 	to 	them by this 	chapter.
FACTUAL 	SUMMARY
The 	District 	operates 	an 	internal 	mail 	system 	serving
administrative 	offices 	in the 	Board of Education building, 	77
school 	sites 	and 30 	child development centers. 	The mail
employees 	also process 	the 	United States 	(U.S.) 	mail 	between the
District and outside entities. 	The District employs 	three 	full-
time 	drivers 	and two 	full-time mail 	clerks who work exclusively
in the mail 	room. 	These 	employees 	sort 	approximately 	8,500 	to
9,000 	pieces 	of mail per day. 	The 	estimated 	cost 	to 	the 	District
for processing each piece of mail 	is 	five 	to 	six cents.2
From 	1976 	to 	1980, 	the District had regulations prohibiting
the 	use 	of 	the 	internal 	mail 	system by employee 	organizations.
However, 	during this period of time, 	employees did utilize the
mail 	system 	to 	communicate with 	the 	exclusive 	representative,
. . .'
2As 	the 	internal mail 	system processes 	both 	internal 	mail
and 	United 	States 	mail 	and 	the 	testimony 	indicates 	that 	each
school site is on a U.S. 	postal route (T. R. Vol. 	II, p. 	154), 	it
would 	appear 	that 	the 	District's 	internal 	mail 	system 	overlaps
with U.S. 	postal routes.
2

Teachers Association of Long Beach 	(TALB). 	In December 	1979, 	the
District 	intercepted 	a 	TALB 	communication which 	instructed
individual 	employees 	to report 	to 	TALB 	through 	the 	internal 	mail
system. 	Assistant 	Superintendent William Marmion 	then 	notified
TALB and the 	District's 	employees 	that they were 	not to use 	the
internal 	mail 	system 	for 	TALB 	communications.
In February 	1980, 	in response 	to PERB's 	decision in Richmond
Unified 	School 	District 	and 	Simi 	Valley 	Unified 	School 	District
(1979) 	PERB Decision No. 	99, 	the District promulgated new
regulations 	entitled 	"Administrative 	Regulations 	for 	Exclusive
Representative Association 	Use 	of 	the 	District Mail 	Delivery
Service." 	The regulations were 	amended in August 	1980 	to 	include
other 	employee 	organizations 	and other 	associations. 	The 	amended
regulations 	are 	at issue here.
Since the regulations were adopted, 	TALB, 	pursuant to those
regulations, 	has restricted its mailings 	to a 	single newsletter
per week, 	consisting of one or two pages. 	These newsletters 	are
bundled 	and 	addressed to 	either 	the 	TALB 	representative 	at 	each
school 	site, 	or, 	if the name of the 	site representative is
unknown, 	the name of the school 	site. 	Thus, 	each mailing
includes 	107 pieces of bundled mail, 	which is delivered to the
TALB site representatives who, 	in turn, 	distribute the
newsletters 	to 	individuals 	via their 	site mail boxes. 	There 	is
no 	evidence 	that 	the 	District 	permitted 	any other mailings
besides 	the weekly newsletter, 	or that TALB requested any
additional mailings, 	nor was 	there 	evidence 	that any other
w	
3

association 	sought to use the mail 	system. 	Since 	December 	1979
and 	the District's 	adoption of its regulations, 	employees have
generally not 	used 	the 	mail 	service 	to 	respond to 	TALB's 	mailings
or inquiries.
Pursuant 	to 	the provisions 	of 	the 	regulations which
allegedly require 	District approval 	based on 	content, 	the
District has 	refused to 	approve 	the distribution of 	certain 	TALB
newsletters 	through its 	internal mail 	system. 	On two occasions,
the 	District refused to permit 	TALB 	to 	send its 	newsletter which,
along with 	its 	regular 	TALB reports, 	also 	contained materials
relating to 	local 	political 	campaigns 	and 	school 	board elections.
On at 	least one other occasion, 	the District refused to permit
TALB to 	send its 	newsletter, 	which also 	contained a paid
advertisement. 	Finally, 	on another occasion, 	the District
refused 	to permit 	TALB 	to 	send a pamphlet 	containing League 	of
Women Voters' 	information.3
DISCUSSION
The 	District's 	principal 	defense 	is 	its 	assertion that 	the
Federal 	Private 	Express 	Statutes4 prohibit the 	carrying of
3Although 	there 	is 	testimony 	that 	the 	District 	refused 	to
permit TALB to distribute 	a League 	of Women Voters' 	information
pamphlet, 	there 	is no testimony regarding the reasons why the
District 	refused 	to 	distribute 	the 	information or 	how the
information was 	to be distributed to the employees. 	Thus, 	there
is 	insufficient 	evidence 	for 	the 	Board to determine whether 	this
information 	constitutes 	a 	letter under 	the postal 	regulations.
418 U.S.C, 	sections 1693-1699, 	1724; 	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 paying postage.
A4

letters 	to 	or 	from TALB 	through the 	District's 	internal 	mail
system. This 	is 	the 	same 	issue 	which 	was 	recently 	decided 	by 	the
U.S. 	Supreme Court 	in Regents 	of 	the 	University of California v.
Public 	Employment Relations Board 	(1988) 	485 	U.S.
[99 L.Ed.2d 664] 	(UC Regents). 	In UC Regents, 	the Supreme
Court held that the 	Letters 	of 	the 	Carrier 	and Private 	Hands
exceptions 	to 	the 	Federal 	Private 	Express 	Statutes 	did not 	permit
the 	university to 	carry the 	union's 	letters 	in its 	internal 	mail
system.5
While	frwhile 	UC 	Regents 	dealt 	only with whether 	access 	rights
under 	the 	Highe-----r 	Education 	Employer-Employee 	Relations 	Act
(HEERA) 	conflict with the Federal Private Express Statutes, 	the
analysis 	is 	equally applicable 	to 	access 	rights 	under 	EERA.
Access 	rights 	under HEERA are 	governed by 	section 	3568, 	while
access 	rights 	under EERA are 	governed by 	section 	3543.l(b).
Section 	3568 	of HEERA 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.
Section 	3543.l(b) 	of EERA 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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As 	the wording of the two provisions 	is 	nearly identical, 	we 	find
that UC Regents 	is 	applicable 	to EERA.
In the underlying decision, 	Regents 	of the 	University of
California 	(1984) 	PERB Decision No. 	4 2 0 - H 	(Regents) , 	the Board
held 	that 	an 	employee 	organization's 	use 	of 	the 	university's
internal 	mail 	system was 	permitted by 	two 	exceptions 	to 	the
Private Express 	Statutes, 	commonly known as 	"Letters 	of the
Carrier" 	and 	"Private 	Hands 	Without Compensation."6 The 	Letters
of 	the Carrier exception is 	set out at Title 	18 	U.S.C. 	section
1694, which provides:
Whoever, 	having charge or control of any
conveyance operating by land, 	air, 	or water,
which regularly performs 	trips 	at 	stated
periods 	on any post route, 	or 	from one place
to 	another between which the mail 	is
regularly carried, 	carries, 	otherwise than in
the mail, 	any letters or packets, 	except such
as 	relate 	to 	some part of 	the 	cargo of 	such
conveyance, 	or to the current business 	of the
carrier, 	or to 	some article 	carried at the
same time by the 	same conveyance, 	shall,
except as otherwise provided by law, 	be 	fined
not more than $50.
Title 	18 U.S.C, 	section 1696(c) 	provides, 	in relevant part,
that 	the 	Private 	Express 	Statutes 	"shall 	not prohibit 	the
conveyance 	or 	transmission of 	letters 	or packets 	by private 	hands
without compensation 	. 	. 	. 	." 	The regulation governing the
"The 	Board 	also 	found 	that 	the 	employee 	organization's 	use
of 	the university's 	internal 	mail 	system was 	allowed by one
suspension of the Private Express 	Statutes, 	entitled, 	"Suspension
for 	certain 	letters 	of 	college 	and university organizations." 	As
this 	type 	of 	suspension expressly applies 	only to31 . .college 	and
university organizations, 	it 	is 	not relevant to 	the present 	case
involving a 	school 	district.
66

Private 	Hands Without Compensation exception is 	codified at 	3 9
C.F.R. section 310.3(c). 	It provides, as follows:
The 	sending or 	carrying 	of 	letters 	without
compensation is 	permitted. 	Compensation
generally 	consists 	of 	a monetary payment 	for
services 	rendered. 	Compensation may also
consist, 	however, 	of non-monetary valuable
consideration and of good will. 	Thus, 	for
example, 	when a business relationship exists
or 	is 	sought between the 	carrier and its
user, 	carriage by the carrier of the user's
letter will 	ordinarily not 	fall 	under 	this
exception; 	or, 	when a person is engaged in
the 	transportation 	of 	goods 	or persons 	for
hire, 	his carrying of letters 	"free of
charge" 	for customers whom he does 	charge 	for
the 	carriage 	of goods 	or persons 	does 	not
fall 	under this 	exception.
In affirming Regents, 	the Court of Appeal 	relied 	solely upon
the 	Letters 	of 	the 	Carrier 	exception 	and 	found 	it 	unnecessary 	to
consider 	any other 	exception 	to 	the 	Federal 	Private 	Express
Statutes. 	The court found, 	as had the Board, 	that provisions of
HEERA describing 	its 	purpose 	reflect 	the 	intent 	of 	the
Legislature 	that 	collective 	bargaining be 	part 	of 	the 	"current
business" 	of the university. 	Thus, 	an employee organization's
mail would relate 	to the 	"current business" 	of 	the university.
The 	Court 	of Appeal 	found 	further 	support 	for 	its 	position
in United States v. 	Erie Railroad Company 	(1914) 	235 	U.S. 	513 	[59
L.Ed. 	335], 	where the U.S. 	Supreme Court applied the Letters of
the 	Carrier 	exception to the 	carriage 	of 	letters 	by 	a railroad
for a telegraph company. 	In exchange 	for a percentage 	of
receipts 	and 	joint 	supervision, 	the 	railroad company granted the
telegraph 	company 	the right 	to 	operate 	telegraph 	lines 	previously
77

operated by the 	railroad. 	Relying on the 	interdependence 	of 	the
two 	companies, 	the 	Supreme Court 	concluded that the 	carriage 	of
. .. .the. . . .
the 	telegraph 	company's 	letters 	constituted the 	"current
business" 	of the railroad. 	In reviewing Regents, 	the Court of
Appeal 	found 	the 	relationship 	between 	the 	university 	and 	employee
organization 	analogous 	to 	the 	relationship between 	the 	railroad
company 	and 	telegraph 	company.
However, 	in UC Regents, 	the U.S. 	Supreme Court reversed the
Court of Appeal 	and PERB. 	In its 	opinion, 	the Supreme Court held
that neither 	the 	Letters 	of 	the 	Carrier nor Private 	Hands
exceptions, 	properly construed, 	permit a 	state university to
carry unstamped 	letters 	from 	a 	labor 	union 	for 	delivery 	to
certain 	university 	employees 	in the 	university's 	internal 	mail
system. 	In its 	discussion of the Letters 	of the 	Carrier
exception, 	the 	court reasoned that 	the 	ordinary meaning 	of 	the
term 	"current business" 	does 	not 	encompass 	the 	union's 	internal
letters. 	The 	court 	stated that 	such letters relate 	to the
union's 	efforts 	to organize 	the employees, 	and cannot accurately
be 	described as 	the 	"current business" 	of the 	employer. 	The
court 	also 	distinguished 	its 	only previous 	decision 	concerning
the Letters 	of the Carrier exception, 	United States v. 	Erie
Railroad Company, 	supra, 	235 U.S. 	513, 	which concerned a 	joint
venture 	between a railroad 	company and 	telegraph 	company. 	In
that case, 	the 	court held that the 	"business of the 	carrier"
included the business 	of 	the 	joint enterprise. 	The 	Supreme 	Court
concluded that 	the 	lack of 	factual 	similarities 	between 	Erie
8

Railroad 	Company 	and UC 	Regents 	rendered 	Erie 	Railroad 	Company
inapplicable 	to 	the 	proper 	construction 	of 	the 	Letters 	of 	the
Carrier 	exception.
With regard to the Private 	Hands 	exception, 	the 	Supreme
Court 	concluded that this 	narrow exception was 	developed by
Congress 	to 	permit 	only the 	gratuitous 	carriage 	of mail
undertaken out 	of 	friendship, 	not pursuant to a business
relationship. 	The 	court 	found 	that a business 	relationship
existed between the university and union. 	Specifically, 	by
delivering the union's 	letters, 	the university was 	performing a
service 	for 	its 	employees 	that 	they would otherwise 	pay 	for
themselves 	through their union dues. 	This 	service would then
become 	part 	of 	the 	employer's package of monetary and non-
mandatory benefits 	provided to 	its 	employees 	in exchange 	for 	the
employees' 	services. 	As the 	carriage of the union's letters
pursuant to 	such an exchange 	of benefits 	necessarily means 	that
the 	carriage 	is not 	"without 	compensation," 	the 	court held that
the 	Private 	Hands 	exception did not 	apply.
To determine whether 	the bundles 	of 	the newsletters 	sent 	by
TALB 	through 	the 	District's 	internal 	mail 	system 	are 	covered 	by
the 	Federal 	Private 	Express 	Statutes, 	the 	Board must determine
whether 	these materials 	fall 	under 	the definition of 	"letter,"
codified at 39 C.F.R. section 310.1(a), 	which provides, 	in
pertinent part:
(a) 	"Letter" 	is a message directed to a
specific 	person 	or 	address 	and 	recorded 	in 	or
on a tangible object, 	subject to the
following:
9

(1) 	Tangible objects used for letters
include, 	but are not limited to, 	paper
(including paper in sheet or card form),
recording disks, 	and magnetic tapes.
Tangible 	objects 	used 	for 	letters 	do 	not
include 	(i) 	objects the material or 	shape and
design 	of which make 	them 	valuable 	or 	useful
for purposes 	other 	than 	as 	media 	for 	long-
distance 	communications, 	unless 	actually used
as 	media 	for 	personal 	and business
correspondence, 	and 	(ii) 	outsized, 	rigid
objects 	not 	capable 	of 	enclosure 	in
envelopes, 	sacks, 	boxes or other containers
commonly used 	to 	transmit 	letters 	or packets
of letters.
(2) 	"Message" 	means any information or
intelligence 	that 	can be 	recorded as
described in paragraph 	(a)(4) 	of this
section.
(3) 	A message 	is 	directed to a 	"specific
person or address" when, 	for example, 	it, 	or
the 	container 	in which it 	is 	carried, 	singly
or with other messages, 	identical or
different, 	is marked for delivery to a
specific person or place, 	or is delivered to
a 	specific 	person 	or place 	in 	accordance with
a 	selective delivery plan. 	Selective
delivery plans 	include 	delivery 	to 	particular
persons 	or addresses 	by use 	of 	detached
address labels or cards; 	address lists;
memorized groups 	of addresses; 	or 	"piggy-
backed" 	delivery with 	addressed 	articles 	of
merchandise publications, 	or other items.
Selective 	delivery 	plans 	do 	not 	include
distributions 	of materials 	without written
addresses 	to passersby on a particular 	street
corner, 	or to all residents or randomly
selected residents 	of 	an area. 	A message
bearing the name 	or address 	of 	a 	specific
person or place 	is 	a letter even if 	it is
intended by the 	sender 	to be 	read 	or
otherwise 	used by 	some 	person 	or 	persons
other 	than or 	in addition to 	the 	addressee.
Consistent with the 	Federal 	Private Express 	Statutes, 	the
District's 	regulations 	prohibit TALB's 	use 	of 	the 	internal 	mail
10

system 	for 	"items/letters 	directed to 	specific 	persons 	or 	persons
by title" 	and 	"notices 	to. building representatives 	for posting or
follow-up action." 	Under the District's 	regulations, 	the only
material 	that 	TALB 	is 	authorized to 	send through 	the 	internal
mail 	system 	is 	the 	official 	association newsletter 	issued 	on 	a
regular basis, 	i.e., 	"At A Glance." 	There 	is 	testimony that TALB
wanted 	to use 	the 	internal mail 	system 	for other materials 	(TR
Vol. 	I, pp. 	42-47; 	see charging party's Exhs. 	10 and 11), but
also 	that 	anything 	that 	TALB would put 	into 	the 	internal 	mail
system would 	"bear an addressee." 	(TR Vol. 	IV, 	p. 	4.) 	However,
as 	the 	TALB materials 	addressed to a 	specific person, 	including
the 	notices 	addressed to 	the 	business 	representatives 	for 	follow-
up 	(TR Vol. 	II, 	p. 	151), would fall under the postal regulations'
definition 	of 	"letter," 	TALB would be 	prohibited 	from 	sending
these materials 	through 	the 	District's 	internal 	mail 	system 	under
the U.S. 	Supreme Court decision in UC Regents. 	Similarly, 	if the
newsletters 	also 	fall under the postal 	regulations' 	definition of
"letter," 	then 	TALB would be 	prohibited 	from 	sending 	the
newsletter 	through 	the 	District's 	internal 	mail 	system.
In 	determining whether 	TALB's 	weekly newsletters 	are 	letters
within the postal regulations' 	definition, 	the Board must analyze
whether 	any of 	the 	exceptions 	to the definition of 	"letter" 	apply
to 	the 	newsletters. 	The 	only exception which arguably 	could
apply to 	these newsletters 	is 	the 	exception 	for 	"newspapers 	and
periodicals." 	Since 	the postal regulations do not 	include 	any
definition .of these terms, 	the Board must look to other 	sources.
11

The definition 	in Funk 	and Wagnalls 	Standard College
v Dictionary defines newspaper as 	follows:
1. 	A printed publication usually issued
daily or weekly, 	containing news, 	editorials,
advertisements, 	etc. 	2. 	Newsprint.
(Funk 	and Wagnalls 	Standard 	College
Dictionary 	(5th ed. 	1974), 	p. 	911.)
Periodical 	is defined as:
1. 	Of or pertaining to publications, 	as
magazines, 	etc., 	that appear at fixed
intervals of more than one day; 	also,
published at regular intervals. 	2.
Periodic.
(Funk 	and 	Wagnalls 	Standard 	College
Dictionary (5th ed. 	1974), p. 	1003.)
Similarly, 	the definition of newspaper at 66 C.J.S., 	Newspaper,
section 1, 	page 22 states:
In ordinary understanding a newspaper 	is 	a
publication, 	usually in sheet form, 	intended
for general 	circulation, 	and published at
short 	intervals 	containing 	intelligence 	of
current events 	and news 	of general 	interest.
Although 	TALB's 	newsletter 	appears 	to be 	distributed 	on 	a weekly
basis, 	the 	language 	in the newsletters 	is directed to the
bargaining unit employees. 	In fact, 	the newsletters regularly
contain a message 	from the president of 	TALB, 	and other reports
on TALB 	issues. 	The 	newsletters 	inform the bargaining unit
members of upcoming events, 	including elections, 	meetings, 	and
membership campaigns, 	and contain updates 	on negotiations, 	unfair
practice charge hearings, 	and legislative bills. 	This 	type 	of
information is more 	akin to a message directed to the bargaining
unit employees, 	as 	opposed to general 	information not intended
for a 	specific 	group. 	Unlike a newspaper, 	which is 	intended for
12

general 	circulation and 	contains 	current 	events 	and news 	of
general 	interest, 	the newsletters 	are 	intended for a 	specific
group, 	namely the bargaining unit employees, 	and contain
information and messages 	directed 	to 	its 	bargaining unit
employees.7
Consistent with the postal regulations' 	definition, 	Funk and
Wagnalls 	Standard College 	Dictionary defines 	"letter" 	as 	follows:
A written or printed message, 	usually of a
personal 	nature 	or 	concerning a 	specific
subject, 	directed to a 	specific person,
group, 	or category of persons.
(Funk 	and Wagnalls 	Standard 	College
Dictionary 	(5th ed. 	1974), 	p. 	776.)
In the present 	case, 	the 	facts 	are uncontradicted and establish
that 	the 	newsletters were 	bundled 	and 	the 	envelope 	for 	each
bundle 	of newsletters was 	addressed to a 	specific 	site
representative 	or 	specific 	school 	address. 	The newsletters were
then delivered 	to 	individual 	mailboxes 	by 	the 	site
representatives. 	Although the 	specificity of 	the 	addressee 	is
one 	indicia of the 	common understanding of 	letter, 	the 	fact 	that
the newsletters are not addressed, 	by name, 	to each bargaining
unit employee, 	and do not include a 	salutation to 	its members,
does 	not mean that 	the newsletters 	are not 	letters 	under the
7It 	is 	also 	interesting that 	Funk and Wagnalls 	Standard
College 	Dictionary's 	definition of newsletter as 	"a brief,
specialized, 	periodical news report or 	set of reports 	sent by
mail," 	and Webster's 	New World Dictionary's 	definition of
newsletter as 	"containing recent news, 	often of 	interest to 	a
special 	group" 	are 	consistent with the postal regulations'
definition 	of 	"letter." 	(Funk and Wagnalls 	Standar	. . " . . d College
Dictionary 	(5th ed. 	1974), 	p. 	911; 	Webster's New World Dictionary
(2d college ed. 	1976), 	p. 	958.)
13

1
Private 	Express 	Statutes. 	The delivery of the newsletters 	to
the 	individual mailboxes of 	the bargaining unit employees, 	and
the 	content of 	the newsletters 	specifically directed to 	the
bargaining unit 	employees 	are 	indicative 	that 	the 	newsletters
constitute a letter. 	Even if these newsletters were not bundled
in envelopes 	addressed to 	site representatives 	or 	school 	site
addresses, 	the newsletters would 	still 	constitute 	letters 	due 	to
their 	content 	and the 	fact that the delivery is 	directed 	to each
of 	the 	bargaining unit employees.
This 	finding 	is 	consistent with a 	federal 	case 	involving
advertising 	circulars. 	In Associated Third Class 	Mail 	Users 	v.
United States Postal Service 	(D.C. 	Cir. 	1979) 	600 F.2d 824, 	the
Court 	of Appeal 	found 	that 	advertising 	circulars 	were 	included 	in
the postal regulations' 	definition of 	"letter." 	The 	court used
Webster's 	Dictionary to define 	a 	letter as 	"a written or printed
message 	intended 	for the 	perusal 	only of 	the 	person 	or
organization to whom it 	is 	addressed." 	The 	court 	concluded that
the 	advertising 	circulars were 	intended 	for the 	perusal 	of 	the
addressees, 	and 	stated that the key fact was 	that the 	sender's
goal was 	to reach the particular persons who had been 	identified
as 	most 	likely to be 	interested 	in the 	advertised products. 	The
court held that the 	advertising circulars were 	letters, 	despite
the 	fact that others might also 	see 	the 	circulars.
In the present case, 	the 	same analysis applies. 	The
newsletters 	are delivered to 	the 	individual 	mailbox 	of 	each 	of
the bargaining unit employees, 	and are 	intended to be read by
14

TALB's bargaining unit 	employees. 	Based on the 	fact 	that 	the
newsletters 	are 	delivered 	to 	the 	individual 	bargaining unit
employees 	and 	contain messages 	directed 	to 	the 	bargaining unit
employees, 	the 	Board finds 	that these newsletters 	do not
constitute 	a newspaper or periodical, 	but 	fall within the postal
regulations' 	definition of 	"letter."
As 	these TALB materials 	constitute 	a 	"letter" 	under the
Federal Private Express Statutes, 	the Board holds that, 	pursuant
to the U.S. 	Supreme Court decision in UC Regents, 	neither the
Letters 	of 	the 	Carrier 	nor Private 	Hands 	exceptions 	of 	the
Federal 	Private 	Express 	Statutes 	permit 	the 	District 	to 	carry 	the
TALB materials 	through the 	District's 	internal 	mail 	system.
Therefore, 	the Board hereby REVERSES 	the ALJ's 	conclusions 	of
law, 	and hereby DISMISSES 	the 	complaint.8
Members 	Shank and Camilli 	joined in this 	Decision.
Member Craib's 	dissent begins 	on page 	16.
15
p
As 	the 	Board 	finds 	that the 	TALB materials 	are 	letters
under the Federal 	Private 	Express 	Statutes, 	and that 	the 	Letters
of 	the 	Carrier and Private 	Hands 	exceptions 	do not permit 	the
District's 	carriage 	of 	such TALB materials 	through 	its 	internal
mail 	system, 	the 	Board 	finds 	it unnecessary to address 	the
reasonableness 	of 	the District's 	amended regulations.

Member Craib, 	dissenting: 	I 	am compelled to dissent 	from
the majority's 	"decision." 	In 	short, 	the majority has
misidentified the 	issues 	in dispute, 	and has 	thus 	failed to
decide 	the 	case 	that was brought before 	it. 	At issue 	is 	the
lawfulness 	of regulations 	the 	District promulgated 	in 	1980 	to
govern the use of 	its 	internal mail 	system. 	Some 	of 	the
provisions 	of 	those 	regulations 	are 	based on 	the 	purported 	effect
of the 	Postal Express 	Statutes, 	but many provisions 	are not. 	As
the majority noted, 	the effect of 	the Postal 	Express 	Statutes 	has
been 	settled by the 	U.S. 	Supreme Court 	in Regents 	of 	the
University of California v. 	PERB 	(1988) 	485 U.S. 	[99 	L.Ed.2d
664] 	(hereafter, 	U.C. 	Regents). 	The proper course for the Board
to take 	now would be to apply the Court's decision to the 	related
portions 	of 	the 	regulations 	and decide 	the propriety of 	the 	other
portions 	in 	accordance with 	Board 	precedent 	and/or 	its 	view of
the meaning of 	"reasonable regulation" as 	used 	in HEERA 	section
3568 	(for text, 	see majority decision, p. 	5, 	fn. 	5 ) .
The majority 	instead analyzes 	the 	case 	as 	if 	the matter 	in
dispute was 	the 	carriage 	(through the 	District's 	internal 	mail
system) 	of 	TALB's weekly newsletter. 	Finding that the 	newsletter
does 	not 	fall within any of 	the 	exceptions 	to 	the 	definition of 	a
"letter" 	in the postal 	regulations 	(itself 	a dubious
proposition), 	the majority concludes that it is unnecessary to
address 	the reasonableness 	of the 	District's regulations. 	The
absurdity of 	that 	conclusion is 	apparent, 	given the 	fact that 	the
effect 	of 	the 	Postal 	Express 	Statutes 	on the 	carriage 	of 	the
16

newsletter was never at issue 	in this 	case. 	The District, 	in
fact, 	routinely allowed the 	carriage 	of 	the newsletter through
its 	internal mail 	system! 	TALB's 	objection has 	always 	been to
the 	regulations 	themselves 	and that 	is what heretofore 	has 	been
litigated in this 	case.
TALB's amended unfair practice 	charge, 	which was
incorporated by reference 	into 	the 	complaint, 	clearly alleges
that the regulations 	are unreasonable 	on their 	face 	and asks 	that
much of 	the regulations be 	stricken, 	including 	several 	portions
which have no relation to the 	Postal 	Express 	Statutes. 	The ALJ's
list of 	issues 	to be decided 	(see attached proposed decision, 	pp.
16-17) 	includes many unrelated to the 	Postal 	Express 	Statutes,
including 	those 	concerning 	content 	and 	quantity 	restrictions.
Moreover, 	nowhere 	in the record is 	there 	any indication that the
sole 	issue 	in dispute is 	the 	lawful 	carriage under the 	Postal
Express 	Statutes 	of any particular mailing. 	As 	noted above, 	the
majority's 	focus 	on TALB's weekly newsletter 	is 	particularly
strange because the regulations, 	as 	designed and applied,
permitted the 	carriage 	of the newsletter. 	The 	carriage 	of 	the
newsletter was 	placed in 	issue 	only to 	the 	extent 	that 	the
District 	several 	times 	rejected 	a 	particular 	edition due 	to 	its
content. 	That issue, 	of course, 	turns on the propriety of
prepublication content regulation, 	not upon the 	applicability 	of
the 	Private Express 	Statutes.
In sum, 	it is the reasonableness of the regulations, 	on
-
their face, 	that is at issue in this 	case. 	This includes both
17

those 	provisions 	based 	on the 	Postal 	Express 	Statutes 	and those
which are unrelated. 	Therefore, 	the application of 	the 	Postal
Express 	Statutes 	to any particular mailing, 	especially TALB's
weekly newsletter, 	is 	irrelevant to this 	case.1 Addressing the
"reasonableness" 	of the 	District's 	regulations 	on their 	face 	is 	a
difficult task which I 	do not relish. 	Nevertheless, 	that is what
this 	case requires. 	Simply avoiding these 	issues 	as 	the majority
has 	done 	is 	simply not 	an 	intellectually honest option.
Therefore, 	for the edification of all concerned, 	I will resolve
the 	true 	issues 	presented by this 	case. 	After waiting 	six 	years
for the Board's decision, 	the parties deserve no less.2
The 	District's regulations 	are 	summarized at pp. 	9-13 	of 	the
attached proposed decision. 	I will 	address 	each 	section 	(in
numerical order) 	that is 	in dispute 	(i.e., 	those where the
District has 	excepted to the ALJ's 	finding of unreasonableness).
1The majority's 	conclusion that 	the newsletter 	is 	not 	a
"newspaper 	or periodical" 	within the meaning of 	the 	postal
regulations 	is highly questionable. 	However, 	since 	that
determination is 	irrelevant to this 	case, 	I need not address 	it
further.
2During most 	of 	the 	six year period the 	Board held the 	case
in abeyance pending a final decision in the U.C. 	Regents, 	supra,
case, 	which was 	expected to dictate 	the propriety of 	some 	(but
not all) 	of the provisions of the District's regulations.
18

Section 2 	- Advance Notice
Relying 	on both PERB precedent3 and 	constitutional
principles, 	the ALJ 	concluded that the 	law does 	not allow the
District to restrain TALB mailings prior to dissemination. 	I
would affirm the ALJ on this 	point, 	as 	Richmond/Simi 	is
controlling and 	I 	find no 	compelling reason to 	overrule 	it.
However, 	as the Board did in Richmond/Simi, 	I would refrain from
relying 	on 	constitutional 	law and decide 	the 	case 	on 	statutory
grounds 	only. 	While the 	District may not 	screen the 	content of
TALB mailings prior to dissemination, 	it is 	important to note
that 	to 	the 	extent 	this 	section of 	the 	regulations 	merely
requires 	advance 	notice 	that 	TALB wishes 	to use 	the mail 	system,
it 	is 	unquestionably reasonable. 	Such notice would allow the
District 	to adequately plan 	for 	the 	carriage 	of 	TALB's mailings,
thereby 	lessening any effect 	upon 	the 	efficiency of 	the 	system.
Section 	3 	- 	Publication Requirements
The 	analysis 	of this 	section assumes 	post-publication
application only, 	for prior 	screening of mailings, 	as discussed
above, 	has been held to be unreasonable.
Subdivisions 	(a) 	and 	(b)
These 	subdivisions 	are 	based upon the 	Postal 	Express
Statutes and postal regulations 	(see 	39 CFR 310.1). 	Subdivision
(a) 	expressly allows newsletters 	such as TALB's, 	citing the
3Richmond Unified 	School 	District 	and 	Simi 	Valley 	Unified
School 	District 	(1979) 	PERB Decision No. 	99 	(hereafter
Richmond/Simi); Pittsburgh Unified School District, ,(.1978) 	PERB
Decision No. 	47.
19

newspaper 	and periodical 	exception to 	the 	definition of 	a
"letter" 	(39 CFR 310.1(a)(7)(iv)). 	This confirms that the
carriage of 	TALB's 	newsletter 	is 	not at issue 	in this 	case. 	More
importantly 	for this portion of 	the 	analysis, 	this 	subdivision
appears 	to be 	consistent with the postal 	regulations 	and thus
constitutes 	"reasonable 	regulation."
Subdivision 	(b) 	mirrors 	some 	of the language of the
definition of a 	"letter" 	(39 CFR 310.1(3)0)), 	and thus would
appear to be reasonable. 	However, 	the 	second 	sentence 	states
that 	"Notices 	to building representatives 	for 	posting 	or 	for
follow-up action may not be 	sent." 	I would find this 	to be
reasonable 	only to 	the 	extent 	that 	it 	can be 	read to be
consistent with 	the 	following exception 	to 	the 	definition 	of 	a
"letter," 	at 39 CFR 310.1(a)(7)(viii):
Tags, 	labels, 	stickers, 	signs or posters the type,
size, 	layout or physical 	characteristics 	of which
indicate 	they are 	primarily 	intended 	to 	be
attached to other objects 	for reading.
Subdivisions 	(c), 	(d) and (e)
These 	subdivisions were 	found by the ALJ 	to be 	reasonable 	if
applied only after dissemination. 	The 	District 	excepts 	to 	this
limitation, 	but 	I 	would affirm based on the discussion above with
regard 	to 	Section 	2.
Subdivisions (f), 	(g), 	(h) and (i)
I 	disagree with the ALJ's 	conclusion 	that 	subdivisions 	(f)
through 	(i) 	are unreasonable. 	Subdivisions 	(f), 	(g), 	and 	(h)
prohibit the mailing of any material that 	sanctions, 	induces,
20

aids, 	encourages, 	abets or assists work stoppages, 	disruption of
regular 	school 	operations 	by acts 	of violence 	and destruction,
alteration 	or 	obliteration 	of 	District property 	or records.
Paragraph 	(i) 	prohibits 	the 	sending of material 	violative 	of 	law.
The ALJ analyzed subdivisions 	(f), 	(g), 	and 	(h) 	together,
rather 	inexplicably, 	as his 	analysis 	appears relevant only to
subdivision 	(f). 	The ALJ pointed to the no-strike 	clause 	in the
parties' 	contract, 	along with the contractual grievance
procedure, 	as 	sufficient means 	to regulate work 	stoppages. 	He
concluded 	that 	regulation of work 	stoppages 	through mail 	system
restrictions 	would give 	the 	District 	an unfair 	contract
enforcement 	advantage 	and discriminate 	in 	favor 	of 	nonexclusive
employee 	organizations 	or 	those 	not party to 	a no-strike 	clause.
I 	find 	the ALJ's 	reasoning unconvincing. 	I 	see no unfair
contract 	enforcement 	advantage 	stemming 	from 	the 	mere 	regulation
of mailings 	concerning work 	stoppages. 	Such regulation does 	not
directly 	influence 	the 	propriety 	of 	a work 	stoppage 	and would be
of 	little effect in causing such conduct to cease. 	Similarly, 	a
prohibition 	of 	strike-related mailings 	creates 	no 	significant
additional 	burden 	on 	an 	employee 	organization that has 	already
made a contractual pledge not to 	strike. 	Therefore, 	I do not
find 	such a 	provision in 	any way discriminatory.
My rejection of 	the ALJ's 	reasoning 	is 	based on my
conclusion 	that 	restriction 	of 	materials 	which 	advocate 	or
encourage unlawful, 	disruptive 	conduct is unquestionably
reasonable. 	Such conduct 	is 	not 	consistent with employee
21

organizations' 	statutory purpose 	and therefore 	should not 	enjoy
the benefit of 	statutory access 	rights. 	Nor can public 	school
employers 	fairly be 	required 	to 	carry mailings which 	are 	not 	only
unrelated to legitimate employee 	organizations' 	activities, 	but
threaten 	to 	unlawfully 	destroy 	school 	property 	and 	disrupt 	the
educational process. 	For these reasons, 	I 	find that 	subdivisions
(f)y 	(g), 	and 	(h) 	constitute 	reasonable 	regulation to 	the 	extent
they 	seek to 	avoid use 	of 	the mail 	system in the 	aid of 	illegal
activities. 	The ALJ apparently viewed 	subdivisions 	(g) 	and 	(h)
as 	relating to work 	stoppage 	situations, 	hence he analyzed them
in that context. 	However, 	on their face, 	subdivisions 	(g) 	and
(h) 	do not apply 	solely to work 	stoppage 	situations.
Unlike subdivisions 	(g) 	and 	(h), 	subdivision 	(f) 	does not
seek to restrict only unlawful 	conduct. 	By its 	own terms,
subdivision 	(f) 	would prohibit mailings 	in 	support of all work
stoppages.4 While 	both 	legal 	and 	illegal work 	stoppages 	have 	the
potential 	of 	seriously disrupting the educational 	process, 	work,
stoppages 	do 	not necessarily 	present 	the 	substantial 	threat 	to
peaceful 	school 	operations5 that violent 	or destructive 	conduct
clearly does. 	As discussed above, 	it is the unlawful 	character
of 	the 	conduct 	that 	justifies 	the 	restriction as 	to 	illegal 	work
4I 	would consider 	"illegal" 	work 	stoppages 	to be 	both those
unlawful 	as 	a matter 	of 	law and those made 	unlawful 	by 	contract.
5In Richmond/Simi, 	supra, 	the 	Board concluded that 	"school
employer regulations 	under EERA 	section 	3543.l(b) 	should be
narrowly drawn to 	cover the 	time, 	place 	and manner of 	the
activity, 	without impinging on the 	content unless 	it presents 	a
substantial 	threat to peaceful 	school 	operations."
22

stoppages. 	Further, 	a public 	school 	employer may find many
lawful 	employee 	organization activities 	distasteful 	or
potentially burdensome, 	but 	such activities 	are 	given the
protection of the 	law. 	I 	therefore 	conclude that it is
unreasonable 	to 	restrict mailings 	which 	advocate 	or 	support
lawful 	activities, 	including work 	stoppages.
Subdivision 	(i), 	which merely prohibits the 	sending of
materials violative 	of 	law, 	was 	found by the ALJ to be
unreasonably vague 	and overbroad. 	I 	disagree. 	This provision 	is
certainly broad, 	but its meaning is 	clear--the 	District will 	not
allow its 	mail 	system to be 	used to 	carry 	illegal 	material.
Consistent with my 	approval 	above 	of 	restrictions 	on 	the 	sending
of materials 	in support of illegal 	activities, 	I 	find it
reasonable 	to prohibit the 	sending of mailings which are
themselves 	illegal. 	As 	there are 	a number of 	laws which might
make material illegal, 	it would be difficult, 	if not impractical,
to provide 	an exhaustive 	list of 	all 	applicable 	statutes 	and
legal principles.
Section 4 	- Frequency
This 	section limits mailings 	to one per week, 	not to exceed
three 	8-1/2 	x 	11 	inch pages. 	The ALJ 	found this 	to be 	an
arbitrary 	limit 	that was 	not 	supported by 	evidence 	concerning 	the
operation of the mail 	system. 	While 	it is 	true 	that the 	limits
appear 	to be 	arbitrary 	and 	the 	District 	failed 	to 	provide
evidence 	that would 	justify them, 	I 	do not read this 	provision to
create 	a hard and 	fast rule. 	This 	regulation 	further provides
23

that, 	if the 	association wishes 	to 	send mailings 	of 	greater
frequency or 	length, 	it must give 	the 	employee relations 	office
24 	hours notice. 	Assuming that this means 	that additional
mailings would be 	allowed as 	long as 	the 	District has 	sufficient
notice 	to allow it to plan for the 	additional 	carriage, 	this
provision is 	not unreasonable.
In addition, 	while a once-a-week, 	three-page limit is not
supported on this record, 	I 	must emphasize 	that the 	statute 	does
not provide 	for unlimited access 	to 	the mail 	system. 	Limitations
on 	the 	frequency 	and 	size 	of mailings 	must 	necessarily be 	judged
on 	the 	circumstances 	existing 	in each 	school 	district.
Logically, 	a 	central 	factor will 	be 	the burden varying volumes 	of
mailings 	place 	on the 	internal 	mail 	system. 	Regulations 	designed
to both protect access, 	yet minimize 	its 	impact, 	should be 	looked
upon 	favorably by this 	Board. 	Examples 	are the 	District's
present requirement 	that mailings 	be 	reviewed 	in 	advance 	as 	to
volume, 	bulkiness, 	or other hazards they might pose, 	and TALB's
present practice 	of bundling mailings 	by 	school 	site.
Section 7 	- Responses
This 	section prohibits 	employees 	from 	sending responses 	to
association mailings. 	The ALJ 	found this 	restriction to be
unreasonable, 	relying on passages 	from Richmond/Simi which 	speak
of 	the 	right 	of 	access 	in terms 	of 	two-way communications between
employees 	and employee 	organizations. 	He 	also 	found it
incongruous 	that 	the 	Legislature would provide 	for means 	of
..
24

communication 	to 	employees 	but not 	provide 	for responsive
communication 	to their 	employee 	organizations.
Given the U.S. 	Supreme Court's decision in U.C. 	Regents,
supra, 	the 	only employee 	organization mailings 	that may be
carried without postage 	are 	those which 	are not 	"letters" 	within
the meaning of the postal regulations 	(39 CFR 310.1(a)(7)). 	My
review of 	those 	regulations 	has 	revealed no 	listed 	exceptions
which would encompass responses 	from employees. 	Consequently, 	it
appears 	that all 	such responses would be 	"letters," 	and 	thus
prohibited by the 	Private 	Express 	Statutes. 	With that
understanding, 	I would 	find that 	section 	7 	constitutes
"reasonable 	regulation."
Section 	9 	- 	Reserved Right
The portion of this provision that 	is 	in dispute 	is 	that
which provides 	that 	the 	District may 	charge 	associations 	for
their 	share of the 	costs 	of maintaining the mail 	system. 	The ALJ
found this 	unreasonable, 	relying primarily on the 	rationale 	of
Regents 	of 	The 	University of 	California 	(Lawrence 	Livermore
National Laboratory) 	(1982) 	PERB Decision No. 	212-H, 	where the
Board held 	(in a 	situation not 	involving a mail 	system) 	that
statutory access 	rights 	cannot 	be 	subjected to 	the 	taxation 	of
costs. 	In the Board's underlying decision in U.C. 	Regents, 	PERB
Decision No. 	420-H,6 this principle was 	expressly extended to the
The 	only issue 	on appeal 	in U.C. 	Regents was 	the 	effect of
the 	Private 	Express 	Statutes 	on access 	rights 	arising under 	state
law. 	Consequently, 	the remainder of 	the Board's decision
continues to be precedential.
25

use of 	internal mail 	systems. 	While precedent on this 	issue
arose under HEERA, 	the relevant provisions 	of 	the 	EERA are 	nearly
identical 	and 	should be 	interpreted 	in the 	same 	fashion.
Consequently, 	I would affirm the ALJ's 	holding that this
provision of 	the regulations 	is 	unreasonable.
Section 	10 	- 	Summary Provisions
This 	section 	simply 	states 	that the use of 	the 	District's
mail 	system 	is 	governed by the 	Private 	Express 	Statutes. 	The ALJ
found 	this 	unreasonable 	due 	to his 	conclusion that 	several
exceptions 	to 	the 	Private 	Express 	Statutes 	made 	them 	inapplicable
to 	an employee 	organization's 	use 	of 	the 	employer's 	internal
system. 	That view, 	of course, 	was not shared by a majority of
the U.S. 	Supreme Court in U.C. 	Regents. 	Since it is now
established that the 	Private 	Express 	Statutes 	do 	apply, 	this
section 	is 	unquestionably reasonable.
CONCLUSION
Unlike the majority, 	I would address 	the reasonableness of
the District's mail 	system regulations, 	for that 	is 	the 	issue
this 	case 	squarely presents. 	The majority has 	instead chosen to
focus on a matter not even at issue in this 	case, 	i.e., 	whether
TALB's weekly newsletter 	is 	a 	"letter" 	within the meaning of 	the
postal 	regulations. 	As discussed above, 	I would affirm in part
and reverse 	in part 	the ALJ's 	proposed decision.
26

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEACHERS 	ASSOCIATION OF LONG BEACH,
Charging 	Party,
V.
LONG BEACH UNIFIED SCHOOL 	DISTRICT,
Respondent.
)
) 	Unfair 	Practice
Case No. 	LA-CE-1151
PROPOSED 	DECISION
(10/19/82)
)
)
)
)
)
)
)
Appearances; 	A. Eugene Huguenin, Jr., Esq., 	attorney for
Teachers Association of Long 	Beach; 	McLaughlin & Irvin by
Joseph M. McLaughlin, 	Esq. 	and Lawrence J. McLaughlin, 	Esq.,
attorneys 	for 	Long 	Beach 	Unified 	School 	District.
Before Stephen H. 	Naiman, 	Administrative Law Judge.
I. 	STATEMENT OF THE CASE
On March 8, 	1980, 	charging party, 	Teachers Association of
Long 	Beach 	(hereafter 	TALB or 	Association) 	filed 	an Unfair
Practice Charge 	against 	respondent, 	Long 	Beach Unified School
District 	(hereafter 	District). 	The Charge alleges 	that 	the
District violated 	sections 	3543.l(b) 	and 	3543.5(a)(b)(c) 	of 	the
Educational 	Employment 	Relations Actl 	(hereafter 	EERA or 	Act)
by 	adopting 	unreasonable 	regulations 	governing 	the 	use 	of 	the
District mail 	service; 	by 	notifying 	the Association 	that
previously 	allowed Association 	communications 	would 	no 	longer
be 	carried 	by 	the 	District mail 	service 	and 	by 	denying 	the
1The 	Educational Employment 	Relations Act 	is 	codified 	at
Government Code 	section 	3540, 	et 	seq.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
___ )

requests 	by TALB 	to 	alter 	the 	regulations 	and make 	them
reasonable.
The 	District 	filed 	its Answer 	on May 	27, 	1980 denying 	the
allegations 	of 	the Charge. 	The District 	affirmatively 	alleged
that 	its 	mail 	regulations 	were mandated 	by 	and 	consistent 	with
the 	federal Private Express Statutes 	and 	the 	regulations 	of 	the
United 	States 	Postal Service. 	An 	informal 	conference 	was 	held
on June 	3, 	1980. 	The parties 	could 	not 	agree 	upon a settlement
proposal. 	A complaint was 	issued 	by 	the 	Public Employment
Relations 	Board.
A formal hearing was 	scheduled 	for 	August 	13, 	1980. 	On the
day 	the 	formal 	hearing was 	to 	commence, 	respondent 	distributed
an 	amended 	set 	of 	mail 	access 	regulations 	and 	the 	parties
discussed 	certain 	issues 	raised 	by 	the Charge 	as 	well 	as 	the
possibility of 	informally 	resolving 	the 	dispute. 	The 	parties
were 	still 	unable 	to 	reach 	agreement 	or 	viable 	settlement.
However, 	it 	was 	understood 	that 	charging 	party would 	amend 	the
Unfair 	Practice 	Charge 	to more 	squarely 	confront 	the
reasonableness 	of 	the District's 	amended mail 	service
regulations 	in 	relation 	to 	the 	federal Private Express
Statutes. 	The 	date of 	the 	formal 	hearing was 	rescheduled 	to
permit 	charging 	party 	an opportunity 	to 	amend 	its 	Charge. 	On
October 	3, 	1980, 	charging party filed 	an Amendment 	to the
Unfair 	Practice Charge 	and 	on October 	21, 	1980 	respondent 	filed
and Amended 	Answer 	to Unfair 	Practice 	Charge.
N	
2

The 	formal 	hearing 	commenced 	pursuant 	to 	notice 	on March
27, 	1981 and continued on May 	28 and 29, 	1981. 	During the
course of 	these proceedings, 	a disagreement developed 	between
the parties 	as 	to 	the 	scope of 	the Amended Charge 	and 	the
understandings 	reached between the parties 	on August 13, 	1980.
Respondent made 	an oral motion 	that 	the Administrative 	Law
Judge 	who 	had 	assisted 	the 	parties 	at 	that 	earlier 	date
disqualify 	himself 	from 	further 	participation 	in 	the 	case. 	The
Administrative Law Judge 	denied 	the motion. 	Counsel 	for
respondent 	requested 	and 	was 	granted 	the 	right 	to 	appeal 	the
matter 	to 	the Chief Administrative Law Judge 	pursuant 	to
California Code of Civil Procedure, 	section 170. 	After 	both
parties 	had 	been 	given 	full 	opportunity 	to 	brief 	the matter,
the 	Chief Administrative 	Law 	Judge 	sustained 	the 	ruling 	of 	the
Administrative Law Judge on December 	11, 	1981.
The 	formal 	hearing 	in 	this matter 	resumed on March 	25, 	1982
and 	concluded on March 	26, 	1982. 	Pursuant 	to an agreed-upon
briefing 	schedule, 	final 	briefs were 	received on July 12, 	1982
and 	the matter 	was 	submitted.
II. 	FINDINGS OF FACT
A. 	Background
Long 	Beach 	Unified 	School 	District 	encompasses 	an 	area 	in
excess 	of 	128 	square miles. 	Within 	the District 	there 	are 	77
school 	sites 	covering 	grades 	kindergarten 	through 	12 	as 	well 	as
certain special 	schools, 	continuation high schools 	and 	adult
education 	schools. 	In 	addition 	there 	are 	30 	Child Development
3

Centers 	contiguous 	to the school 	sites. 	As of 	1981, 	the 	total
enrollment 	of 	students 	in grades 	kindergarten 	through 	12 was
56,125. 	Additionally, 	the District had 	3,244 	adult 	students.
The 	District 	employs 	approximately 	2,883 	certificated 	employees
and 	approximately 	2,200 	classified 	employees.
During 	the 	times 	relevant 	to 	this proceeding, 	there were
four 	separate 	collective 	bargaining 	units, 	two 	classified 	and
two 	certificated. 	The majority of 	the 	classified 	employees 	are
represented 	by California School Employees Association. 	The
certificated 	employees 	are 	in 	units 	covering 	teachers 	who 	teach
grades 	kindergarten 	through 	12 	and 	teachers who 	teach 	in 	the
Child Development 	Centers. 	Both 	units 	are 	represented 	by 	the
charging 	party, 	Teachers Association of Long 	Beach.
At 	all 	times 	during 	these proceedings, 	TALB and 	the
District 	were 	parties 	to a 	collective 	bargaining 	agreement
which had 	as 	its 	term May 	21, 	1979 	through June 30, 	1982.
During 	negotiations 	for 	this 	agreement, 	certain proposals were
made 	relating 	to use of 	the 	school mail 	service. 	These
proposals 	were 	eventually 	dropped 	and 	the 	contract 	is 	silent on
the question of 	use of 	the 	school mail 	service. 	In addition,
the 	agreement 	contains 	a 	no 	strike 	clause.
4

B. 	The District Mail 	Service
The 	District maintains 	an 	internal mail 	distribution
system. 	The District mail 	service 	transports 	communications
between 	the Administrative 	offices 	in 	the 	Board 	of 	Education
Building 	and 	the 	77 	school 	sites 	plus 	30 	Child Development
Centers. 	In addition, 	the 	service picks 	up mail 	from each of
the 	sites 	and 	returns 	it 	to 	the mail 	room either 	for
distribution 	within 	the 	Board 	of 	Education Building 	or 	for
distribution 	to one of 	the 	other 	school 	sites of 	the District.
The 	mail 	service 	transports 	mail 	between 	51 different 	offices
within 	the Board 	of Education Building 	twice 	a 	day. 	The mail
room 	is 	located 	on 	the 	first 	floor 	of 	the 	Board 	of 	Education
Building 	and 	occupies 	a 	concrete 	enclosure 	approximately 	20 	by
40 	feet. 	In addition, 	there 	is a dock area with space 	for 	the
three 	vans 	used 	to carry 	the mail.
The 	District 	employs 	five 	employees; 	three who drive 	the
vans 	and 	two who work 	full-time 	in 	the mail 	room. 	All
employees work an eight-hour 	day, 	however, 	the 	three messengers
who 	drive 	the 	vans 	begin 	slightly 	earlier 	than 	the 	two
permanently 	assigned mail 	room employees. 	The 	procedures 	on a
daily 	basis 	involve 	picking 	up messages 	first 	thing 	in 	the
morning. 	Thereafter 	the messengers 	begin the mail 	routes.
Each of 	the 	three 	vans 	stops 	at 	an 	assigned school 	site. 	The
schedule 	allows 	approximately 	10 	to 	15 minutes 	between 	each
stop. 	During 	these 	stops, 	the messenger 	will 	drop off mail 	for
5

a school 	site 	and 	pick 	up mail 	from a school 	site. 	Mail which
is 	picked 	up 	and 	dropped 	off 	is 	carried 	to and 	from 	the 	school
site 	in a 	single 	container 	or 	"bin." 	After 	the mail 	is
delivered 	to 	a school site 	it 	is 	then 	sorted 	by a clerical
employee 	and 	placed 	in 	the 	appropriate 	employee's mail 	box.
Mail 	received 	from a school 	site 	is 	returned 	to 	the mail 	room
for 	sorting 	at 	the 	end of 	the 	route.
The 	employees 	driving 	the 	van 	usually 	return 	to 	the mail
room 	some 	time 	in 	the 	afternoon 	following 	their 	lunch 	break.
Upon 	return 	to 	the mailroom, 	the 	bins 	from each of 	the 	school
sites 	are 	carried 	into 	the mail 	room for 	sorting. 	The
messengers 	assist 	in sorting 	the mail 	upon 	completion of 	their
routes. 	At 	the 	conclusion of 	the day, 	the 	bins 	containing
mail 	for 	delivery 	the 	following 	day 	are 	loaded 	into 	the
trucks. 	Uncontradicted 	testimony 	indicates 	that 	it 	takes 	a
mailroom 	employee 	approximately one minute 	to sort 	17 	to 	20
pieces 	of mail. 	The District mail 	employees 	sort 	approximately
8,500 	to 	9,000 	pieces 	of 	mail 	each 	day. 	In addition 	to 	this
amount, 	the District mail 	room employees 	are 	required 	to
process 	mail 	from 	the District 	to be 	sent 	through 	the U.S.
mails 	to points 	outside of 	the District. 	The 	annual 	budget 	for
the mail 	room 	is 	approximately 	$123,000, 	and 	it 	is estimated
that 	it 	costs 	the District 	five 	to 	six 	cents 	to process 	each
item of 	mail. 	The 	District mail 	service 	carries 	communications
6
6

relating 	to 	the 	business 	of 	the District 	such 	as 	payroll
records 	instructional materials, 	student records, 	and
accounting 	records.
C. 	The 	District's 	Regulations 	Covering Use of 	the Mail Service
The District 	has 	had 	regulations 	governing 	the 	use 	of 	the
mail 	service 	since 	1960. 	In 1976, 	following 	the passage of 	the
EERA, 	the District 	had 	regulations 	which prohibited 	use 	of 	the
school mail 	system by any employee organization. 	In the years
1976 	through December 	of 	1979, 	the 	record 	reveals 	that
unbeknownst 	to 	the District, 	employees 	were 	utilizing 	the
school mail 	service 	to 	communicate 	with 	charging 	party, 	TALB.
While 	the 	amount 	of 	communication which 	took place 	is 	not
expressly 	revealed 	by 	the 	record, 	it 	is 	clear 	that 	employees
utilized 	the 	mail 	system 	for 	communications 	including 	responses
to Association surveys 	concerning 	negotiations. 	The 	record
further 	reveals 	that 	employees 	would 	usually 	give 	their
communications 	to 	a 	site 	representative 	who would 	then forward
them 	in 	an 	envelope 	to TALB which 	had 	and 	still 	has 	a
receptacle 	at 	the 	Board of Education Building. 	Thereafter 	the
Association 	would 	pick 	up 	these materials 	and 	take 	them down 	to
the TALB offices 	in Long Beach.
In December 	of 	1979, 	the District 	intercepted a TALB
communication 	which 	instructed 	individual 	employees 	to
communicate 	to TALB 	through 	the 	school mail 	system. 	By
7

communications of December 	21, 	1979, 	Assistant Superintendent
William Marmion 	instructed 	TALB 	and 	the 	District's 	employees
not 	to 	use 	the mail 	system for 	communications 	to 	the
Association.
In approximately late February 1980, 	the District
promulgated 	a 	new 	set 	of 	regulations 	entitled 	"ADMINISTRATIVE
REGULATIONS 	FOR EXCLUSIVE 	REPRESENTATIVE 	ASSOCIATION 	USE 	OF 	THE
DISTRICT MAIL DELIVERY SERVICE." 	These 	regulations 	are
ostensibly 	based 	on PERB's 	decision 	concerning 	access 	to 	school
mail 	systems 	in Richmond Unified 	School 	District 	and 	Simi
Valley Unified School District 	(8/1/79) 	PERB Decision No. 	99.
TALB expressed 	its 	concern 	about 	the 	legality of 	these
regulations 	but 	the District 	held 	firm. 	In August 	1980 	the
District 	amended 	these 	regulations 	and 	to 	date 	they 	remain
unchanged.
The 	regulations 	amended 	in August 	13, 	1980 permit employee
organizations 	and 	other 	associations 	to 	utilize 	the 	school mail
distribution 	system. 	Prior 	to February 1980, 	associations were
not permitted 	to use 	the District mail 	service. 	Thus, 	these
regulations 	grant 	a 	broader 	right 	than 	previously 	had 	existed.
However, 	the 	regulations only permit 	an association to use 	the
District's mail 	distribution 	system 	to 	send one 	regular
newsletter 	once 	a week. 	In summary, 	the 	regulations provide:
CO	
8

1. 	Eligibility
Associations 	and 	organizations, 	other 	than 	an exclusive
representative, 	are 	required 	to file certain 	identifying
information prior 	to being 	permitted 	to 	use 	the mail 	system. •
2. 	Advance Notice
Any association or 	employee 	organization 	desiring 	to 	use
the mail system 	is 	required 	to 	file 	two 	copies 	of 	any mailing
by 	9:00 	a.m. 	of 	the 	day prior 	to 	the 	date when distribution 	is
requested. 	No mailings may 	be 	given 	to 	the mail 	room 	until 	the
District Employee 	Relations 	Office 	notifies 	the 	sender 	that 	the
mailing 	has 	been 	"approved." 	The 	Employee 	Relations Office
will 	notify 	the 	mail 	room 	and 	any 	sending 	association 	if
materials 	are 	not 	approved 	and 	such materials 	will 	be 	returned
to the 	sender.
3. 	Publication Requirements
Materials 	distributed 	through 	the District mail 	system,
"must 	be official 	association materials 	such 	as 	newsletters
issued 	by 	a local 	association." 	(Emphasis 	supplied.) 	These
publications must meet 	the District's 	interpretation of 	the
Private Express 	Statutes, 	the Education Code 	and 	the District's
Regulations. 	The 	following 	criteria 	are 	set 	forth 	as 	a 	basis
for 	determining 	whether 	the 	District will 	approve 	a mailing:
9

a. 	Newsletters 	issued 	on 	a 	regular 	basis
(weekly, monthly, quarterly) 	may be sent
through 	the District mail 	service.
Irregular 	or 	special 	flyers may not.
Commercial 	announcements 	will 	not 	be
approved. 	[Per 	Private Express Statutes 	39
CFR, 	310.l(a)(7)(iv)]
b. 	Items/letters 	directed 	to 	specific
persons 	or 	persons 	by 	title may 	not be
sent. 	Notices 	to building 	representatives
for 	posting 	or 	for 	follow-up action may 	not
be 	sent. 	[Per 	Private Express Statutes 39
CFR, 	310.l(a)]
c. 	Per 	PERB Decision No. 	99, 	any material
which 	"inspires 	immediate 	violent 	conduct
by 	readers 	or 	substantially 	impairs 	any
school 	function" 	shall not 	be 	sent 	through
-	the 	District mail 	service.
d. 	Per 	PERB Decision No. 	99, 	any material
that 	is 	critical of 	public 	school officials
with 	"actual malice 	or 	reckless 	disregard
for 	truth" 	shall 	not 	be 	sent 	through 	the
District mail 	service	- 	.
e. 	That 	which 	urges 	the passage or 	defeat
of 	any school measure 	of 	the District
including, 	but not limited 	to, 	the
candidacy of 	any person 	for 	election for
the 	governing 	board 	of 	the 	District may not
be sent. 	-
f. 	That which calls 	for, 	sanctions,
induces, aids, encourages, abets or assists
in any manner 	a strike, 	sympathetic or
otherwise, walkout, 	slowdown or work
stoppage 	of 	any nature 	by 	employees 	of 	the
District may 	not 	be 	sent.
g. 	That which calls 	for, 	sanctions,
induces, aids, encourages, abets or assists
in any manner 	a disruption of 	the 	regular
school operations 	by 	acts 	of 	violence 	by
employees 	of 	the District may not be 	sent.
10

h. 	That which calls for, 	sanctions,
induces, aids, encourages, abets or assists
in 	any manner 	the 	destruction, 	alteration
or 	obliteration of 	any District property or
record, 	including 	student 	records or 	the
removal 	of 	such property or 	records 	from
the District premises 	by employees of 	the
District may not 	be 	sent.
-
i. 	No 	publication 	shall 	contain material
violative of 	law.
4. 	Frequency
Mailings 	to 	an 	association's membership are 	normally
limited 	to one 	(1) 	communication per 	week per 	association.
Each mailing 	shall 	not 	exceed 	three 	(3) 	8 	1/2 x 11 	inch pages.
If 	the 	association 	wishes 	to 	send 	a 	second 	publication or 	one
of more 	than 	(2) 	two pages, 	it must notify the Employee
Relations Office 	24 	hours prior 	to 	the mailing.
5. 	Handling
a. 	Any materials 	sent 	through 	the 	District mail 	service
must 	be 	accompanied 	by a 	completed 	request 	form: 	"Request 	to
Use District Mail 	Service." 	This 	request 	form requires 	the
sender 	to 	list 	certain 	information, 	and must 	have 	a 	signature
to 	indicate 	that 	the person 	requesting 	the 	use of 	the mail
service 	has 	"read 	and 	understood" 	certain 	civil 	and 	criminal
statutes 	relating 	to libel 	and 	slander 	which 	appear 	on 	the
reverse 	side 	of 	the 	form.2
2The 	reverse 	side 	of 	the 	request 	form quotes 	from
sections of 	the California Penal Code 	section 	248 	and
section 	249 	involving 	the 	definition of 	libel 	and 	the 	penalties
11

for 	anyone 	who publishes libellous material. 	The 	reverse 	side
also summarizes California Civil Code, 	sections 	44, 	45 and 46,
which define 	defamation, 	libel 	and 	slander. 	Also summarized
are 	certain 	sections 	from 	the 	treatise 	on California
Jurisprudence, 	sections 	139 and 	140, 	relating to republication,
multiple 	publication 	and 	the 	extent 	of 	publication 	of
defamatory material.
b. 	Any materials 	sent 	through 	the District mail 	service
must not 	create 	an 	"undue 	impact" 	on 	the 	service. 	Those 	using
the mail 	service must 	count, 	package 	and label materials 	and
address 	them 	in bulk fashion 	for 	receipt 	at a given site. 	The
materials must 	be 	delivered 	to 	the mail 	room 	at 	least 	24 	hours
prior 	to 	the 	requested 	delivery date. 	No bulk mailings may be
originated 	at 	a school 	site. 	All mailings 	are subject 	to a
determination 	by 	District 	personnel 	that 	they may 	be 	feasibly
handled 	on 	a 	given 	date.
6. 	Site Distribution
Association 	representatives 	at 	each 	site 	are 	to be
responsible 	for 	distributing materials 	to 	the 	individual mail
boxes 	during 	non-duty 	time. 	The 	District's only 	responsibility
is 	to 	inform 	an 	association's 	site 	representative 	that 	the
materials 	have 	arrived 	at 	the 	site 	for 	distribution or 	to
otherwise 	place 	these 	in 	the 	association 	site 	representative's
mail 	box.
7. 	Responses 	Through The 	District Mail Not Permitted
Individual 	employees may 	not 	return 	responses 	to
association mailings or 	otherwise 	address mail 	to 	the
12

association 	for 	delivery 	through 	the District mail 	service.
United States mail 	is 	to be 	used 	for 	these purposes. 	The
exchange 	of 	personal mail 	by 	individuals 	is 	prohibited. 	[Per
Private Express Statutes, 	39 CFR, 	310.2(a)(b).]
8. 	Hold Harmless 	Clause
The 	District 	disavows 	responsibility 	for 	any claims 	or
legal 	actions 	against 	an association 	arising out of 	the 	use of
the District mail 	service. 	Further 	the District 	informs 	users
of 	the mail 	service 	that 	they 	are 	responsible 	for 	the 	content
of 	their 	communications 	and 	are 	to be 	aware of 	the Civil 	and
Penal Code 	provisions 	on 	the 	reverse 	side of 	the 	request 	form.
9. 	Reserved 	Right
The 	District 	reserves 	the 	right 	to 	amend 	or 	modify 	its
regulations 	and 	to 	withdraw mail 	service 	privileges 	from
associations 	who 	fail 	to comply with 	the 	regulations. 	Further,
upon notice, 	the District 	reserves 	the 	right 	to charge
associations 	for 	their 	respective 	share of 	the 	costs 	of
maintaining 	the mail 	service.
10. 	Summary Provisions
Finally, 	the 	regulations 	state 	that 	the 	use of 	the mail
service 	is 	governed 	by 	the Private Express Statutes of 	the
United States Postal Service. 	These regulations, 	as 	revised,
are presently 	in effect 	in 	the District 	and 	are 	the 	subject of
the 	instant 	dispute.
13

D. 	The Use Of The Mail Service 	In Practice
The 	record 	reveals 	that 	since 	the 	promulgation of 	the 	above
regulations, 	charging 	party 	and 	any other 	association 	have 	been
permitted 	to 	utilize 	the 	District's 	mail 	delivery 	service 	to
send one 	regular 	newsletter 	per 	week. 	In practice, 	TALB has
restricted 	its mailings 	to a single, 	one or 	two page 	newsletter
per 	week. 	There 	is 	no 	evidence 	that TALB desires 	to send more
than one 	regular, 	local, 	weekly newsletter 	to its
constituents. 	Except for 	a 	regular 	newsletter, 	the District
has 	not 	permitted 	any other 	mailings 	to TALB members 	or 	any
other 	association members. 	Thus TALB has 	not 	sought permission
to mail 	surveys 	concerning 	contract 	negotiations 	nor 	has TALB
been 	able 	to mail 	election materials 	to 	its members 	or 	other
newsletters 	from 	the National Education Association with which
it 	is 	affiliated. 	TALB has 	not 	sought 	to 	recruit 	new members
through 	the District mail 	service, 	nor 	has 	it sent 	insurance
information or 	other membership materials 	to employees of 	the
District 	through 	the District mail 	service. 	There 	is 	no
evidence 	that 	any other 	associations 	in 	the District 	have
sought 	to use 	the mail 	service 	for 	any purpose whatsoever.
There 	is 	no 	evidence 	that TALB has 	requested 	permission 	to send
more 	than one mailing 	per 	week or 	a mailing of 	greater 	volume
than three 	(3) 	8 	1/2 X 	11 	inch pages.
Moreover, 	since December 	1979, 	employees have not generally
used 	the mail 	service 	to 	respond 	to 	any of 	TALB's 	inquiries
14

concerning 	contract 	negotiations, 	membership elections,
insurance 	information, 	grievances 	or 	other 	matters 	concerning
which TALB may 	desire 	to 	hear 	from 	its 	constituents.
Any 	communications 	to TALB 	from employees 	at 	a 	school 	site,
are 	generally directed 	to 	the 	site 	representative 	and 	then 	the
site 	representative 	takes 	the 	responsibility of 	carrying 	the
communications 	back 	to 	the 	association office. 	Similarly when
the Association desires 	to communicate with 	its members 	in a
manner 	not 	permitted 	by 	the 	regulations 	these 	communications
are 	delivered 	to 	each 	site 	by TALB 	board members 	or 	by 	site
representatives. 	The mailings 	permitted 	by the 	regulations 	are
bundled 	for 	each 	site 	and 	then 	the 	site 	representative 	receives
the mail 	and distributes 	it 	to the 	individuals 	through 	their
site mailboxes. 	Thus mailings 	by TALB 	to 	its members 	through
the District mail 	service 	generally 	involve 	approximately one
package 	of mail per 	site. 	The 	District clerical 	employee at
each 	site 	is 	only 	required 	to place 	the 	packet 	of 	association
mail 	in 	the 	hands 	of 	a 	site 	representative. 	A TALB mailing
will 	thus 	involve 	only 107 pieces 	of 	bundled mail, 	one 	for 	each
of 	the 	77 	schools 	and 	the 	30 	Child Development Centers.
Based 	upon 	these 	facts 	the Association 	contends 	that 	the
District 	has 	unreasonably 	restricted 	rights 	to 	utilize 	the
district mail 	service. 	In 	response 	the District 	contends 	that
its 	regulations 	are 	reasonable, 	are mandated 	by the 	federal
Private Express Statutes, 	the California Education Code, 	PERB
15

case law, 	and 	the 	need 	to maintain 	an efficient 	and 	cost
effective mail 	service 	in the District.
In practice 	the District 	has 	refused 	at least 	three
newsletters 	of 	the Association pursuant 	to 	the 	provisions 	of
the 	regulations 	which 	purport 	to 	require District 	approval
based 	on content. 	On two occasions 	the District 	refused 	to
permit 	a 	newsletter 	which 	contained 	certain material 	relating
to 	local political 	campaigns 	and 	school 	board 	elections. 	On at
least 	one 	other 	occasion 	the District 	has 	refused 	to permit 	the
Association 	to 	send 	a 	newsletter 	containing 	a 	paid
advertisement. 	And 	still 	on 	another 	occasion 	the District
refused 	to permit 	a pamphlet 	containing League 	of Women Voters
information.
ISSUES
A. 	Whether 	on 	the 	facts 	of 	this 	case 	charging 	party has
established 	that 	the District 	denied 	employee 	organizations 	and
employees 	their 	statutory 	rights.
1. 	Whether 	the Association has 	a right 	to utilize
the District mail 	service.
2. 	Whether 	an Association's 	right 	to utilize 	a
District mail 	service 	includes 	the 	right 	to
receive mail 	from employees.
B. 	Whether 	the District 	has 	justified 	that 	it 	reasonably
restricted 	use 	of 	its mail 	service 	based 	upon 	the 	federal
Private Express Statutes 	and 	federal 	regulations.
16

C. 	Whether 	the District 	has 	justified 	that 	it 	is
reasonable 	to 	bill 	employee 	associations 	for 	their 	share 	of 	the
cost of 	the use of mail 	service.
D. 	Whether 	the District 	has 	justified 	that 	it 	is
reasonable 	to 	limit 	use 	of 	the mail 	service 	based 	upon 	the
quantitative 	and 	economic 	burden.
E. 	Whether 	the District 	has 	justified that 	it 	is
reasonable 	to 	review 	in advance 	the 	content of 	communications
sent 	by 	associations 	through 	the District mail 	service.
F. 	Whether 	the District's 	content 	requirements 	for
advance 	approval 	of 	communications 	sent 	through 	the District
mail 	service 	are 	reasonable:
1. 	Pursuant 	to 	the 	Private Express Statutes;
2. 	Pursuant 	to 	the 	decision of 	PERB 	in
Richmond/Simi, supra;
3. 	Pursuant 	to 	the 	contract 	between the 	parties;
4. 	Pursuant 	to the Education Code.
G. 	Whether 	the District's 	regulations 	are 	justified 	by
alternatives 	to use of 	the mail 	service.
H. 	Whether 	charging 	party 	has 	established 	a 	violation 	of
3543.5(a) 	and 	(b) 	of the EERA.
I. 	Whether 	charging 	party has 	established 	a 	violation of
3543.5(c) 	of 	the EERA.
J. 	What 	remedy, 	if any, 	is appropriate.
17

CONCLUSIONS 	OF LAW
A. 	The 	Association's Claim 	that 	the 	District 	Unlawfully
Denied 	it 	the 	Right 	to Use 	Other 	Means of
Communication.
1. 	The Association's Right 	to Use 	the District Mail
Service.
The Educational Employment Relations Act, 	section 	3543.1(b)
provides that employee organizations "shall have 	. 	. 	. 	the
right 	to 	use 	institutional 	bulletin boards, 	mailboxes 	and other
means of 	communication, 	subject 	to 	reasonable
regulation. 	. 	.." 	Section 3543 provides 	that 	for purposes of
representation 	on 	all matters 	of 	employer-employee 	relations
"[p]ublic school employees 	shall 	have 	the 	right 	to 	form, 	join,
and 	participate 	in 	activities 	of 	employee 	organizations 	of
their 	own choosing 	. 	. 	" 	or 	to refrain from doing 	so.
Section 	3543.5(a) 	makes 	it 	an 	unfair 	practice for 	a public
school 	employer 	"to 	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
[the EERA]." 	Section 3543.5(b) 	makes 	it unlawful for an
employer 	to 	"[d]eny 	to 	employee 	organizations 	rights 	guaranteed
to 	them 	by 	[the EERA]."
The 	Public Employment Relations Board has 	determined 	that
the California Legislature 	intended 	that 	the 	internal mail
systems 	of 	school 	districts 	are 	"other 	means 	of 	communication"
which 	employee 	organizations 	have 	a 	right 	to 	use 	pursuant 	to
18

section 	3543.1(b) 	of 	the EERA. 	This 	right 	is qualified 	solely
by 	a District's 	need 	to 	reasonably 	regulate 	the 	use of 	such
facilities. 	Richmond/Simi, 	supra at 12-14.
In 	the 	case of 	Richmond/Simi, 	supra 	the Board examined mail
systems 	in 	two 	other 	school 	districts 	which were 	substantially
similar 	to 	the one 	at 	issue 	here. 	PERB 	said:
As 	a 	threshold 	matter, 	PERB 	finds 	the
Legislature 	intended 	to 	include 	the 	use of
internal 	school mail 	systems 	as 	one 	of 	the
employee 	organization 	access 	rights
authorized 	by 	section 	3543.1(b) 	of EERA.
(Id. at 	9.)
As a concomitant 	issue, 	PERB, 	later 	in its decision, 	went
on 	to 	confront 	the 	question of 	whether 	denial of 	access 	to 	the
school mail 	systems 	denied 	any 	employee 	rights 	protected 	by 	the
EERA. 	The 	PERB 	stated:
A different 	question 	is 	raised 	by 	the
organizational 	claims 	that 	the 	districts
interfered with, 	restrained or 	coerced
employees 	in 	the exercise of 	their 	rights
guaranteed 	by EERA, 	in violation of
section 3543.5(a). 	(Id. 	at 29.)
PERB went 	on 	to 	find 	that 	the 	denial of 	use of 	the 	school
mail system 	constituted 	"some" 	harm 	to employees' 	rights 	to
receive 	communications 	from employee 	organizations. 	PERB 	then
shifted 	the 	burden 	to 	the District 	to show 	that 	the 	harm was
justified by operational necessity. 	(Id. 	at 	29-31; 	see also
Carlsbad Unified Unified 	School District 	(1/30/79) 	PERB
Decision No. 	89; 	Wilson v. 	University of California at Berkeley
(11/25/81) 	PERB Decision No. 	183-H at 	5.)
19

2. 	The Association's 	Right 	to Receive Mail 	from
Employees.
The 	facts 	in Richmond/Simi, 	supra, 	did not directly posit
the 	question of 	whether 	the 	right 	to 	utilize 	a school mail
system 	encompassed 	use 	by 	employees 	responding 	to or
communicating 	with 	their 	selected 	representative. 	However, 	the
language 	of 	that 	case 	is 	instructive. 	The Board observed 	that
school 	districts 	had historically made 	their 	mail 	systems
available 	for 	two 	reasons:
Effective 	communication 	between 	employee
organizations 	and 	their 	members 	is 	essential
for 	productive 	employer-employee 	relations;
and mail 	systems 	are 	perhaps 	the most
efficient 	and 	non-disruptive means 	of
communication 	available 	to 	employees 	and
their 	representatives. 	(Richmond/Simi,
supra, 	at 10.) 	(Emphasis supplied.)
The Board 	went 	on 	to observe 	that 	in 	determining what
constitutes 	reasonable 	regulation:
[D]istrict 	limits 	on 	access 	rights 	granted
to employee organizations 	. 	. 	. 	are to be
consistent 	with 	statutory 	labor 	law
principles 	set 	forth 	in EERA. 	Within this
labor 	policy design, 	effective 	and
non-disruptive 	organizational 	communications
are 	an 	important 	aspect 	of 	employee 	rights
'to form, 	join, 	and participate' 	in employee
groups 	. . . 	by 	serving 	as 	necessary 	links
between 	employees 	and 	their
representatives. 	Without 	adequate
communications, 	these employee 	rights at
their 	work 	place 	would 	be 	largely 	empty 	or
subject 	to employer 	whim and domination. 	In
turn, 	employees 	and 	their 	representatives
might 	be 	forced 	to pursue 	unscheduled,
disruptive 	and 	even 	secretive means 	of
communication 	hardly 	benefiting 	schools 	in
this 	state. 	(Id. 	at 15.)
-
20

Thus PERB observed 	that EERA section 	3543.1(b) 	was 	a
"legislative step to 	. . . 	insure that employee organizational
communications 	would 	be 	relatively 	unhampered." 	(Ibid.)
In 	further 	analyzing section 3543.1(b) 	of 	the EERA, 	PERB
noted 	that 	since 	it was 	the 	section's 	design 	to 	"protect
employee 	organizations' 	ability to communicate 	freely with
employees, 	it 	is 	appropriate 	to consider 	cases dealing with
employees' 	ability to communicate 	among themselves." 	(Id.
at 	16.) -
PERB 	then went 	on 	to 	analyze 	certain private 	sector 	and
constitutional 	law 	cases 	relating 	to 	the 	underlying 	principles
which 	justify 	the 	need 	for 	an 	adequate means 	of
employee 	expression.3 (See Richmond/Simi, 	supra, 	16-18 and
cases 	cited 	therein.)
The 	Board 	did 	not 	expressly 	find 	that 	the 	right 	to 	use
other 	means 	of 	communication 	extended 	to 	employee 	responses 	and
communications 	to 	their 	selected 	representatives. 	However, 	the
rationale 	and 	analysis 	in 	the Board's 	decision leads 	to 	the
conclusion 	that 	PERB 	recognized 	the 	Legislature was 	aware 	of
employees' 	need 	to be 	able 	to express 	themselves. 	Indeed the
3PERB may 	use 	federal 	labor 	law precedent 	where applicable
to public sector 	labor 	issues. 	Fire Fighters Union v. City of
Vallejo 	(1974) 	12 Cal.3d 603 	[116 Cal.Reptr. 	507]; 	Pajaro
Valley Unified School District 	(5/22/78) 	PERB Decision No. 	51;
Sweetwater 	Union High School District 	(12/6/76) 	EERB No. 	4
(PERB was previously 	known 	as 	the Educational Employment
Relations Board or EERB).
21

right 	to 	utilize 	other 	means 	of 	communication 	given expressly
to employee organizations 	is, 	in part, 	derived from the
language 	of 	private 	sector 	cases 	which 	guarantee 	to 	employees
the 	right 	to 	communicate 	among 	themselves 	and with employee
organizations.
The 	structure 	of 	the EERA premised 	upon 	the 	right 	of 	full
and 	free 	communication 	among 	employees, 	employers 	and 	employee
organizations 	must 	of 	necessity envision 	that 	employee
organizations 	will 	need 	to 	solicit 	information 	and
communications 	from 	the 	affected 	employees. 	It 	is 	incongruous
that 	the 	Legislature would 	establish 	a 	unilateral 	statutory
right 	of 	communication 	to employees, 	thus 	creating 	a vacuum 	in
the vital 	area of 	employee 	response. 	Such a 	statutory
interpretation would deprive 	employee 	organizations 	of 	any
means of 	discovering 	the 	employees' 	opinions 	as 	to 	contract
provisions, 	contract negotiations, contract violations,
grievances 	and 	general matters 	affecting 	the 	day-to-day
operations 	of 	the 	employee 	organizations 	seeking 	to 	represent
those 	individuals. 	It 	cannot logically 	be 	concluded 	that 	the
Legislature wanted 	to 	silence 	this 	vital 	source 	of 	input
necessary 	for 	employee 	organizations 	to 	fulfill 	their 	duty 	to
fairly represent 	their 	members. 	(See EERA section 	3544.9.)
Finally 	the 	record 	itself 	shows 	that 	the District 	on 	occasion
has 	permitted TALB 	to 	use 	the mail 	service 	to solicit employee
input 	concerning 	employee-paid 	income 	protection 	plans 	which
22

bear 	a 	reasonable 	relationship 	to 	the 	employment 	concerns 	of
the 	employer, 	the employee 	organizations 	and 	their members.
It 	is 	concluded 	that 	the 	right 	to use other means of
communication, 	more 	specifically District mail 	systems,
includes 	the 	right 	to 	receive 	communications 	from employees.
The 	regulations 	of 	the 	District 	summarized 	above 	prohibit
use 	of 	the District mail 	system 	by employee 	organizations,
except 	for 	mailing 	of 	one 	regular 	weekly newsletter 	of 	the
local 	organization, 	limited 	in 	size 	to 	a 	three-page 	document
8 	1/2 	x 11 	inches. 	Moreover, 	the 	regulations when 	read
in 	their 	entirety 	and 	specifically 	paragraph 	7 	prohibit
individual 	employees 	from mailing 	to 	their 	representatives
any 	communications 	or 	responses 	to 	communications 	via 	the
District mail 	system. 	These 	provisions 	of 	the District's
regulations 	appear 	to 	unduly 	limit 	the 	right 	to 	use 	the
District mail 	system. 	The 	record 	thus 	supports 	a conclusion
that 	charging 	party has made out 	a prima facie 	case. 	The
burden 	is 	thus 	shifted 	to 	the District 	to justify 	the
reasonableness of 	the 	regulations 	at 	issue 	here.
(Richmond/Simi, 	supra, 	at 	20-21 and cases cited 	therein.)
B. 	The District's Justification 	that 	it Has Reasonably
Restricted Use of 	its Mail Service 	Based Upon 	the Federal
Private 	Express Statutes 	and 	the Accompanying 	Federal
Regulations.
The 	District 	urges 	that 	certain limitations 	embodied 	in
its 	regulations 	are 	required 	by 	the 	federal Private Express
23

Statutes 	and 	the 	attendant 	regulations 	interpreting 	them.
(See 18 U.S.C, secs. 1693-1699; 	18 U.S.C, sec. 1724;
39 U.S.C, 	secs. 	601-606).
The 	Private 	Express 	Statutes 	derive 	their 	authority 	from
Article I, 	section 8, 	clause 	7 of 	the U.S. 	Constitution which
directs Congress 	to establish 	"post 	offices 	and post 	roads."
(United States Postal Service v. 	Brennan 	(2d Gir. 	1978) 	574
F.2d 712, 	714.) 	Pursuant to 39 U.S.C, 	sec. 	401(2) 	the Postal
Service 	adopted 	substantive 	regulations 	relating 	to 	the 	Private
Express Statutes, codified in 39 C.F.R, 	secs. 	310, 	320. 	These
federal 	regulations 	have 	been 	held 	to 	have 	the 	same 	preemptive
effect 	on state 	laws 	as 	do 	the Private Express 	Statutes
themselves. 	(Grover City v. 	U.S. 	Postal Service 	( C D . 	Cal.
1975) 	391 F.Supp. 982, 	986.)
In ex parte Jackson 	(1877) 	96 U.S. 	727, 	734, 	the Court
held 	that 	"the 	power 	of Congress over 	the mail 	is 	an exclusive
power 	and 	embraces 	the 	entire 	postal 	system of 	the 	country."
Several 	non-binding 	authorities 	including 	Advisory Opinions 	of
the 	United 	States 	Postal 	Service 	have 	indicated 	that 	the
Private 	Express Statutes 	and 	regulations 	specifically 	apply 	to
school 	district mail 	systems.
The 	District 	contends 	that 	the 	Private Express 	Statutes
which 	grant 	a monopoly 	to 	the mail 	service 	limit 	its 	ability 	to
carry 	any 	letters 	and other 	materials 	on 	behalf 	of 	an 	employee
organization 	or 	on 	behalf 	of 	employees 	seeking 	to 	communicate
24

with 	an 	employee 	organization.4 The 	District 	takes 	the
position 	that 	unless 	the 	carriage 	of 	materials 	by 	the 	District
mail 	service 	can 	fall 	within 	an 	express 	exception 	to 	the
Private 	Express 	Statutes 	that 	such 	conduct 	on 	the 	part 	of 	the
District 	would 	be 	violative 	of 	federal 	law.5
Pursuant 	to 	the 	second 	exception 	found 	in 	39 	C.F.R,
sec. 	310.2(d), 	the District may carry 	its 	own mail 	via 	its mail
service 	as 	"letters 	of 	the 	carrier." 	The District 	has
4The 	Private 	Express 	Statutes 	place 	responsibility 	on
entities 	carrying 	mail 	to 	insure 	that 	there 	is 	no 	violation 	of
federal 	law. 	Thus 	the 	legal 	impetus 	for 	the 	District's
regulations 	appears 	to 	come 	from 	39 	C.F.R, 	sec. 	310.4 	entitled
"Responsibility 	of 	Carriers." 	This 	section 	cautions 	private
carriers 	that 	they 	should 	take 	reasonable measures 	to 	inform
their 	customers 	that 	only 	proper 	mailable 	materials 	should 	be
given 	to 	them 	for 	carriage. 	It 	also 	states 	that 	carriers
should 	desist 	from 	carrying 	certain 	items 	when 	reasonably
accessible 	information 	indicates 	to 	them 	that 	the 	items
tendered 	are 	not 	proper 	under 	the 	Private 	Express 	Statutes.
539 	C.F.R, 	secs. 	310.2(d) 	and 	310.3 contain five
exceptions 	which 	permit 	private 	carriage 	of 	letters:
(1) 	[letters 	which] 	relate 	to some part 	of 	the
cargo of, 	or 	to 	some 	article 	carried 	at 	the 	same 	time
by, 	the 	conveyance 	carrying 	it;
(2) 	[letters 	which] 	are 	sent 	by or 	addressed 	to
the 	carrier;
(3) 	[letters 	which] 	are 	conveyed or 	transmitted
without 	compensation;
(4) 	[letters 	which] 	are conveyed or 	transmitted
by 	special 	messenger 	employed 	for 	the 	particular
occasion only . 	. 	. 	;
(5) 	[letters 	which] 	are 	carried 	prior 	or
subsequent 	to mailing.
25

additionally provided 	in 	its 	regulations 	that 	it 	will 	carry
regular 	newsletters 	of 	an organization. 	The District's
position 	is 	based 	on 	the 	fact 	that 	the 	Private Express Statutes
cover 	the 	private 	carriage of 	letters. 	As codified 	in the
regulations, 	a "letter" 	has been given a broad definition: 	"a
message 	directed 	to a specific person 	or 	address 	and 	recorded
in or 	on a tangible object." 	(39 C.F.R, 	sec. 	310.l(a).)
Accordingly, 	matters 	that do not 	constitute 	"letters" 	are
outside 	the prohibitions of 	the Private Express Statutes.
Several 	items 	specifically 	excluded 	include 	photographic
materials, tags, labels, stickers, signs and posters, books,
catalogues, 	telephone directories 	and printed 	letters
disseminated 	to 	the 	public. 	(See 	generally 	39 	C.F.R,
sec. 310.l(a) (7) (i)-(xi).)
The District 	permits 	the mailing of 	one 	regular 	newsletter
by employee 	organizations 	pursuant 	to 	the 	definitional
exclusion of 	"newspapers 	and 	periodicals" 	found 	at 	39 	C.F.R.
310.1(a)(7)(iv). 	The phrase "newspapers and periodicals" 	is
not 	defined 	in 	the 	Private Express Statute 	regulations.
However, 	according 	to one of 	the United States Postal Service
Advisory Opinions 	dated July, 	1976, 	"a newspaper 	or periodical
must 	be 	issued 	at 	regular 	and 	stated frequencies." 	(Opinion No.
PES 	76-17, 	p. 	6.) 	This 	definition of 	newspaper 	or 	periodical
requiring 	regular 	issuance 	at 	stated 	frequencies 	appears 	to
26

have 	been 	derived 	from Webster's New 	International 	Dictionary.
Thus, 	except 	for 	regular 	newsletters 	issued by an employee
organization, 	the District's 	regulations 	prohibit 	all 	other
mailings 	by 	an 	employee 	association 	through 	the mail 	system 	in
reliance 	upon 	the Private Express Statutes 	and 	the
interpretative 	regulations. 	Similarly, 	these regulations 	and
statutes 	are 	relied 	upon 	to preclude 	use 	of 	the District mail
service 	by 	employees 	when 	attempting 	to communicate with a
representative 	organization 	and 	to 	preclude 	any 	newspaper
mailings 	which 	contain 	"commercial 	announcements."6
PERB has 	concluded 	that 	it 	is 	constitutionally
impermissible 	for 	this Agency 	to determine 	that 	the 	statutes
it 	administers 	are 	unenforceable 	or 	unconstitutional.7
(Richmond/Simi supra, 	at 14 fn. 	6; 	see also, William H. Wilson
6Compare 	the District's 	regulation paragraph 	3(a) 	and 	39
C.F.R. 	310.l(a)(7)(iv). 	The 	reason for 	the prohibition against
commercial 	announcements 	is not 	at all 	clear.
7Cal. 	Const., 	Art. 	III, 	sec. 	3.5 	(1978):
An 	administrative 	agency, 	including 	an
administrative 	agency 	created 	by 	the 	constitution
or 	an initiative statute, 	has no power:
(c) 	To declare a statute 	unenforceable, or
to 	refuse 	to enforce 	a statute on the 	basis 	that
federal 	regulations 	prohibit 	the 	enforcement 	of
such 	a statute 	unless 	an 	appellate court 	has made
a 	determination 	that 	the 	enforcement 	of 	such
statute 	is 	prohibited 	by 	federal 	law or
regulations.
27
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

v. 	University of California 	at Berkeley, 	supra.) 	Specifically
PERB has 	declined 	to hold 	that 	the 	access 	afforded 	to a
District's mail 	system 	under 	EERA conflicts 	with or 	is
preempted 	by 	the 	provisions 	of 	the Private Express 	Statutes.
Any such 	finding must 	be made 	by 	another 	tribunal.
(Richmond/Simi, 	supra, 	at 14 fn. 	6.)
While 	the Board 	need 	not 	reach 	the 	question of 	whether 	the
EERA has 	been preempted 	by 	federal 	law, 	it 	is possible 	to read
the Private Express Statutes 	to 	be 	consistent with 	the
provisions 	of 	the EERA.
The 	language 	of 	the 	Private Express Statutes 	expressly
excepts 	from 	the 	statutory 	prohibitions 	" . . . 	the 	conveyance
or 	transmission of 	letters 	or 	packets 	by private 	hands 	without
compensation 	. 	. 	. 	.". 	(See 18 U.S.C, 	sec. 	1696(c).)8 	To
8The 	regulations 	explain 	this 	statutory exception:
(c) 	Private 	hands without 	compensation. 	The
sending 	or 	carrying 	of 	letters 	without 	compensation
is 	permitted. 	Compensation 	generally 	consists 	of 	a
monetary payment 	for 	services 	rendered, 	Compensation
may also 	consist, 	however, 	of 	non-monetary 	valuable
consideration and of good will. 	Thus, 	for 	example,
when a 	business 	relationship exists or 	is 	sought
between 	the 	carrier 	and 	its 	user, 	carriage 	by 	the
carrier 	of 	the 	user's 	letter 	will 	ordinarily 	not
fall 	under 	this exception; 	or, 	when a person 	is
engaged 	in 	the 	transportation of 	goods 	or 	persons
for 	hire, 	his carrying of 	letters 	"free of charge"
for 	customers whom he 	does 	charge 	for 	the 	carriage
of 	goods 	or 	persons 	does 	not 	fall 	under 	this
exception. 	(39 C.F.R, 	sec. 	310.3(c).)
28

fall 	within 	the exception, 	a 	carrier may neither 	be monetarily
nor 	non-monetarily compensated 	for 	mail 	services 	rendered. 	In
situations 	similar 	to 	the 	instant 	case, 	certain 	advisory
opinions 	of 	the United 	States Postal 	Service 	posit 	that 	the
very 	nature 	of 	the 	economic 	relationship 	between 	a 	union 	and 	an
employer 	gives 	rise 	to 	a quid pro quo 	for 	the 	carrying of mail
and 	therefore 	amounts 	to 	"non-monetary 	compensation" 	despite
the 	fact 	that 	no charge 	is made 	for 	the 	services. 	Moreover,
these opinions 	argue 	that whether 	or 	not 	use 	of 	the mail 	system
is 	part 	of 	the 	collective 	bargaining 	agreement 	between 	the
parties, 	the 	services of 	the 	employees 	coupled with the
speculative 	failure 	of 	an 	association 	to press 	other 	demands
from 	the 	employer 	gives 	rise 	to 	compensation 	within 	the meaning
of 	the 	Private Express 	Statute. 	The District makes 	a similar
argument 	in 	the 	instant 	case.
None 	of 	the 	advisory opinions 	upon which 	the District
relies 	was 	issued 	pursuant 	to 	a 	statutory scheme 	such 	as 	exists
under 	the EERA. 	The 	advisory opinions 	assume 	that 	the 	use of
the mail 	systems 	in question 	is discretionary. 	In the 	instant
case, 	under 	EERA, 	the 	law mandates 	that 	the District make
available 	to 	employees 	and 	employee 	organizations 	other 	means
of 	communication 	including 	a District mail 	system. 	The
obligation 	to make 	the 	the mail 	system 	available 	derives 	from
statute 	and 	not 	from contract 	or 	the 	employment 	relationship.
Therefore, 	there 	is 	no 	consideration 	running 	to the District
29

for 	the use of 	its mail system. 	Rather, 	school districts 	in
the 	State 	of 	California are 	required 	to make 	their 	mail 	systems
available 	to 	employee 	organizations 	without 	compensation or
charge. 	Thus 	the 	use of 	the mail 	system is without
compensation 	and 	arguably 	falls 	within one 	of 	the 	exceptions 	of
the 	Private Express Statutes. 	(See 	discussion and 	cases 	cited
at pp. 	32-34, infra.)
The 	position 	of 	the District 	and 	the opinions 	on which 	it
relies 	are 	further 	found 	to 	be 	untenable when 	analyzed 	in 	light
of 	the 	relationships of 	all 	the 	parties 	affected 	by 	the
statutory provision 	in 	question. 	The EERA clearly 	affords 	all
employee organizations 	a right 	to use 	school mail 	systems.
Thus, 	even 	if 	there were 	non-monetary consideration 	flowing
from 	the 	exclusive 	representative 	by 	virtue of 	a contract 	with
an employer 	or 	by 	virtue of 	the 	compensation 	given 	to the
employees 	it represents, 	there 	is no basis for 	finding
consideration 	between 	the 	employer 	and 	those 	organizations 	who
are 	not 	the 	exclusive 	representative of 	employees. 	It cannot
be 	argued 	that 	the Legislature of California 	intended 	to give 	a
greater 	right 	of 	communication 	to 	non-exclusive 	representatives
than 	it 	did 	to 	the exclusive 	representatives who have 	a
contract with 	the 	employer.
It 	is 	found 	that 	those provisions 	of 	the District's
regulation which 	limit 	the 	use 	of 	the mail 	service 	only 	to
employee 	organizations 	sending 	regular 	newsletters 	and 	which
30

otherwise 	restrict 	certain 	content 	of 	such newsletters 	or
communications, 	cannot 	be 	justified 	by reliance 	upon the
Private Express Statutes. 	Since 	this 	is 	the 	sole basis upon
which 	the 	District 	relies 	to justify 	the 	exclusion of 	such
communications 	through 	the District mail 	system, 	these
exclusions 	must 	be 	found 	to be 	unreasonable 	and 	therefore
constitute 	an 	unlawful 	restriction of 	the 	right 	of 	access 	to
school mail 	systems.
C. 	The 	District's Justification of 	its 	Right 	to Charge 	for
Use of 	the Mail Service.
Paragraph 	9 	of 	the District's 	regulations 	provides:
"[a]lthough 	associations 	are 	not 	currently 	charged 	for 	costs,
upon advance 	notice, 	the District 	reserves 	the 	right 	to bill
associations 	for 	their 	share of 	the 	costs 	of maintaining 	the
mail 	service." 	This provision of 	the District's 	regulations
relates 	to 	the discussion 	immediately above. 	The Association
contends 	that 	the 	provision 	just 	quoted 	was 	inserted 	into 	the
regulations 	to 	avoid 	the exception of 	"private 	hands 	without
compensation." 	The 	District 	contends 	that 	this provision 	is
merely 	inserted 	in 	the 	regulations 	to permit 	it 	to 	recoup 	its
reasonable 	costs 	of 	administering 	the mail 	service 	should
expenses 	become excessive.
PERB has 	held 	that 	statutory access 	rights 	cannot 	be
subjected 	to 	the 	taxation of 	costs. 	(Regents 	of 	the University
of 	California, 	Lawrence 	Livermore National Laboratory 	(4/30/82)
31

PERB Decision 	212-H 	at 16.) 	In 	the 	instant case 	the
regulations 	which 	reserve 	the 	right 	to assess 	a pro 	rata 	share
of 	the 	costs 	would 	be 	inconsistent 	with 	the 	rationale 	adopted
by 	the 	Board 	in Lawrence Livermore National Laboratory, 	supra.
In 	addition, 	the 	regulations 	entitled 	"Administrative
Regulations 	for 	Exclusive 	Representative Association Use 	of 	the
District Mail Delivery Service" 	are 	directed 	to exclusive
representatives 	and other 	District 	associations. 	The District
has 	offered 	no 	evidence 	that 	other 	users 	of 	the mail 	system may
also be 	required 	to pay a pro 	rata share of 	the costs. 	(See
Lawrence Livermore National Laboratory, 	supra 	at 	16 	and Regents
of 	the University of California, 	Lawrence Livermore National
Laboratory 	(8/24/82) 	PERB Decision No. 	212a-H, 	Request for
Reconsideration 	at 	5.) 	It 	is 	incumbent 	upon the District 	to
establish 	that 	its 	regulations 	are 	reasonable. 	The District
must demonstrate that 	the 	provisions 	of 	the 	regulations 	are
nondiscriminatory 	and 	equally 	applicable 	to 	other 	users 	of 	the
services 	to which 	access 	is 	sought. 	(Ibid.)
The 	additional 	following 	considerations 	would 	support 	the
finding 	that paragraph 	9 	is 	unreasonable, 	should the District
attempt 	to 	enforce 	its 	provisions 	against 	an 	employee
organization 	and 	tax costs 	for 	the 	use of 	the mail 	system.
First, 	the 	regulation 	is 	vague 	in that 	it 	is 	not clear what
portions 	of 	the 	costs may be 	billed. 	The 	regulation 	fails 	to
explain whether 	a 	portion of 	the 	fixed 	cost 	will 	be 	billed or
32

whether 	only 	the 	added 	costs 	of mailing 	are 	to 	be 	billed 	and
what 	factors 	will 	be 	utilized 	to determine 	these costs.
Second, 	it 	is 	arguable, 	that 	the 	taxation of 	costs for 	the 	use
of 	the 	District mail 	system would 	constitute a prohibition
in toto. 	Many organizations, 	if 	not the charging party, would
be 	deterred 	from 	utilizing 	the mail 	system 	based 	upon 	an
unpredictable 	assessment 	added on 	to 	the 	other 	costs 	of
producing 	and 	distributing 	information 	to 	their 	members.
Third, 	to allow the District 	to charge for 	the 	use of 	the mail
service 	would open 	the 	door 	to charges 	for 	the 	use of
mailboxes, 	bulletin boards 	and other 	facilities. 	The
Legislature 	could 	not 	have 	intended 	without 	express 	provision
to 	impose 	such 	an 	unreasonable 	burden on 	the 	access 	rights
clearly granted 	to 	employee 	organizations 	by 	statute.
It 	is 	therefore 	concluded that, 	any attempt 	by the
District 	to 	assess 	costs 	for 	use of 	the mail 	service would 	be
an 	unreasonable 	restriction 	on 	an express 	employee
organizational 	right 	granted 	by 	the 	EERA.
D. 	The District's Justification 	that 	it 	Is Reasonable 	to
Limit 	the Use 	of 	the Mail 	Service 	Based Upon Quantitative
and Economic 	Burdens.
The 	District 	justifies 	certain limitations 	in quantity and
frequency 	of 	mailings 	based 	upon 	the 	alleged 	impact 	they will
have 	on 	the 	cost 	and 	efficiency of 	the 	operation of 	the
District mail 	service. 	Inferentially 	the District 	justifies
its 	limitation 	on 	individual 	responses 	to 	the Association 	and
33

mailings 	by 	the Association 	to 	individual 	employees 	on the
basis 	of 	an 	increased 	burden 	upon 	the mail 	system.
The 	record 	reveals 	that 	the District's 	proffered
justification 	is 	not 	factually 	supported. 	The 	District 	has
offered 	no 	evidence 	to 	show 	that 	its mail 	room 	cannot manage 	to
handle more 	than 	one mailing per 	week on behalf 	of 	an 	employee
organization. 	While 	there 	is 	evidence 	in the 	record 	that 	the
mail 	room 	is 	operating 	at 	"peak efficiency," 	it 	is clear 	that
the 	regulations, 	when promulgated, 	envisioned that exclusive
representatives 	"plus 	associations 	which 	are 	not 	exclusive
representatives" 	are 	each 	permitted 	to 	utilize 	the mail 	system
for 	one 	regular, 	weekly newsletter. 	To date only one 	employee
organization 	has 	chosen 	to do 	so. 	The District's mail 	room has
handled 	TALB'S 	use of 	the mail 	service 	without 	any 	increased
effort, 	cost, 	or 	inefficiency on the 	part of 	the mail room
employees.
The 	record 	further 	reveals 	that 	the 	utilization of 	the
mail 	service 	by 	employee 	organizations 	has 	never 	reached 	the
level 	of 	use 	anticipated 	by 	the 	regulations. 	In this 	regard
the 	record 	reflects 	that 	the District 	anticipates 	there 	are
some 	12 	organizations 	which 	could 	utilize 	the mail 	service
pursuant 	to these 	regulations. 	Thus, 	utilization could
increase 	by 	twelvefold 	beyond 	current 	levels 	and 	still 	fall
within 	the 	permissible 	limits 	of 	the 	regulations.
The 	record 	further 	shows 	that 	each TALB mailing 	involves,
at most, 	107 pieces of mail. 	The Association has 	been able to
34

accomplish 	this 	result 	by 	sending 	a 	package 	of 	mail 	to 	site
representatives 	for 	distribution at 	the 	77 	school 	sites 	and 	30
Child Development Centers. 	The 107 pieces of mail, 	when
compared 	with 	the 	daily 	average 	of 	almost 	9,000 	pieces 	of 	mail
processed 	by 	the mail 	room, 	discloses 	that 	organizational
mailings 	comprise 	an 	infinitesimal 	percentage 	of 	the materials
handled 	by 	the mail 	room.
Thus, 	it 	is 	found 	that the District has 	not established
that 	the 	general 	limitation of 	one mailing 	per 	week 	is
justified 	by 	any 	business 	necessity or 	other 	economic or
physical 	burden 	upon 	its mail 	room 	and mail 	service.
Similarly, 	the District 	has 	not 	factually established 	that
the 	limitation of 	three, 	8 	1/2 	x 11 	inch pages 	is 	a reasonable
limitation on 	the 	size 	and 	volume of 	each 	piece 	of mail 	sent 	by
an employee 	organization. 	The 	record 	does 	reveal 	that 	the
Association 	has 	not 	sought 	to 	send mailings of 	more 	than one 	or
two pages. 	However, 	since 	the 	regulations 	limit organizational
mailing 	to 	regular 	weekly newsletters, 	a 	number 	of 	other
documents 	which 	the Association or 	any other 	employee
organization might 	seek 	to 	send 	have 	been 	excluded 	by 	the 	terms
of 	the 	regulations.
Thus, 	on occasion 	an 	association may seek 	to send out
contract proposals, 	contract 	proposal 	surveys 	and other
mailings 	to 	its 	membership to 	inform 	them of 	the 	progress 	of
negotiations 	and 	also 	to 	solicit 	employee 	input. 	On 	those
35

occasions, 	mailings might 	be greater 	in frequency, 	size and
volume than the District 	regulations permit. 	However, 	it 	is
unlikely 	that 	associations 	would 	frequently 	send 	mailings 	in 	a
volume 	which 	would 	justify 	the 	general 	size 	and 	page 	limitation
imposed 	by 	the District.
First, 	it must 	be 	remembered 	that 	each additional page
increases 	the Association's 	cost of 	a mailing. 	Thus mailings
of 	large 	size 	are 	not 	likely to occur 	on a regular 	basis.
Second, 	the 	only 	record 	evidence 	of 	frequent 	communications
relates 	to 	those 	from 	an 	exclusive 	representative 	during
contract negotiations, which 	generally 	occur 	every one 	to 	three
years. 	It 	is 	unlikely that 	even 	exclusive 	representatives 	will
turn out 	voluminous materials 	relating 	to 	contracts 	and
negotiations. 	There 	is 	a need during negotiations 	to
communicate 	rapidly 	with 	employees. 	Large 	voluminous
communications 	would be 	cumbersome 	for 	the 	employee
organization 	and 	it 	is 	unlikely 	that 	they would 	become 	a
pattern. 	It 	is more 	likely that 	an 	association would utilize
short 	informational 	communications 	to 	its membership.
The 	District 	has 	also 	failed 	to 	show 	that 	its 	arbitrary
limitation of 	three, 	8 	1/2 	x 11 	inch 	pages 	is 	justified by an
actual 	burden on 	its mail 	service. 	There 	is evidence 	that 	the
containers 	provided 	to 	carry 	the mail 	to 	various 	sites 	and 	to
hold 	the 	mail 	at 	the mailroom 	are 	somewhat 	limited 	in size.
However, 	there 	is 	no evidence 	to show that 	an additional page
36

or 	pages 	would 	significantly 	affect 	the 	utilization of 	the
existing 	containers 	for 	handling mail 	or 	otherwise 	burden
mailroom employees 	and 	staff. 	Nor 	is 	there 	evidence 	on 	the
record 	to 	show 	that 	larger 	containers 	have 	not 	been 	used 	in 	the
past or 	could 	not 	be 	acquired for 	future 	use 	if 	the 	need
arises. 	Thus, 	there 	is no justification for 	the size and
quantity 	limitations 	imposed 	by 	the mail 	service 	regulations.
The 	District 	suggests 	that 	if 	employees 	were 	entitled 	to
utilize 	the mail 	service, 	approximately 	4800 	additional pieces
of mail might 	be 	generated 	on 	a daily basis. 	This would
require 	that 	every 	employee 	utilize 	the mail 	service 	on 	a daily
basis. 	The 	District 	argues 	that 	such 	an 	additional 	utilization
of 	the mail 	system would 	increase 	the 	cost of 	operation of 	the
District mail 	service 	by as much as 	50 percent or 	$62,000 per
year. 	This 	argument 	in fact 	disproves 	the District's
contention.
.
There 	is 	no 	record 	evidence 	that 	there 	has 	been 	anything
close 	to 	4800 	additional 	pieces 	of mail 	per 	day 	flooding 	the
District's mail 	system. 	Indeed, 	prior 	to 1979, 	when employees
freely 	utilized 	the mail 	service, 	the District was 	unaware of
this 	use, 	let 	alone was 	it aware of 	any additional burden
created 	by such mailings. 	Moreover, 	it defies logic to assume
that 	either 	individual 	employees 	or 	employee 	organizations
would 	regularly 	utilize 	the mail 	system on 	a 	daily 	basis. 	Even
were 	communications 	to be 	sent 	daily, 	evidence 	in the 	record
37

reveals 	that 	employees 	could 	return mail 	through 	site
representatives 	and 	the 	number 	of 	pieces 	of mail 	on a daily or
weekly basis would be, 	at most, 	107 pieces per 	day.
Thus, 	the 	burden on the District mail 	service will 	never
likely 	reach 	the 	volume 	which 	it 	argues 	will 	impact 	upon
efficient 	operations. 	It 	seems 	impossible 	that 	utilization of
the mail 	service 	by 	individual 	employees 	or 	employee
organizations 	could ever 	reach 	a volume of 	4800 	pieces 	of 	mail
per 	day. 	This 	is 	so, 	even 	if 	employees were permitted to send
individual 	communications 	to 	associations 	and 	not 	use 	the
convenient 	site 	representatives 	at 	their 	school. 	The 	amount of
actual 	and 	potential 	use of 	the mail 	service 	by employees 	and
employee 	organizations 	justified 	by 	the 	evidence 	is 	so 	small
that 	the 	cost 	and 	impact 	upon 	the District's operations 	is
almost 	non-existent. 	The District's 	speculations 	to the
contrary 	are 	unpersuasive.
Finally, 	for 	all 	the 	reasons 	stated 	above, 	the 	limitation
upon 	the 	ability of 	site 	representatives 	to 	return 	packaged
mail 	to 	the 	association mail 	box at 	the 	Board of 	Education
Building 	is 	equally 	unreasonable. 	There 	is 	no 	evidence 	that
the 	site 	representatives 	at 	the 	107 	sites 	throughout 	the
District 	would 	flood 	the mail 	room with mail 	in such 	a 	fashion
to 	impact 	upon 	the mail 	service. 	Indeed 	all 	site
representatives 	would 	be 	sending 	their 	envelopes 	to 	a 	single
mail 	receptacle at 	the 	headquarters 	building. 	Their
38

utilization of 	the mail 	service 	would 	have 	an 	insignificant
impact 	upon 	the 	system.
Thus 	the 	District's 	limitation 	on 	the 	size 	and 	number 	of
communications 	per 	week 	which 	an 	organization may 	send 	through
the 	District mail 	system 	and 	the 	District's 	limitation 	upon 	the
use of 	that mail 	system by 	individual 	employees 	and 	site
representatives 	has 	not 	been 	shown 	to 	be 	justified 	by 	any
legitimate 	business 	considerations 	and 	is, 	at best,
speculative. 	On the 	facts 	of 	this case, 	the 	restrictions 	based
upon 	the 	alleged 	burden 	to 	the District's mail 	service 	are
unreasonable 	and 	thereby 	constitute 	an 	unlawful 	limitation 	upon
associations' 	rights to use the District's mail service.
E. 	The 	District's Requirement 	that 	it Be Given Advance Notice
and 	the Right 	to Examine Materials Before They Are Sent
Through 	the 	District Mail 	Service.
Paragraph 	2 of 	the District's 	regulations 	is 	entitled:
"Advance Notice." 	This 	paragraph 	requires 	that 	the District 	be
furnished 	two 	"file 	copies" 	of 	any 	communication 	to 	be 	sent
through 	the mail 	service, 	by 	9:00 	a.m. 	of 	the 	day prior 	to 	the
date of 	distribution. 	Further, 	the 	regulation provides 	that
any 	such mailings must 	be 	given 	the 	approval 	of 	the District
". 	. 	. 	as to volume, bulkiness, other hazards, and conditions
specified below. 	. 	."9 	One 	reason for 	the 	requirement 	that
materials 	be 	given 	to 	the District prior 	to distribution 	is 	to
9See discussion at 48-56, 	infra,
39
•

permit management 	personnel 	time 	to examine 	the material 	for
certain 	content 	limitations 	which 	are 	expressly 	set 	forth 	in
the regulations 	at Paragraph 3 	(see pp. 	9-11, 	supra). 	The
regulations 	thus 	provide 	the 	District 	an opportunity 	to 	see
organizational 	communications 	prior 	to 	the 	time 	that 	they 	are
disseminated 	to 	the 	organization's 	membership or 	affected
employees.
Advance 	scrutiny of Association 	communications 	to 	be 	sent
through 	the mail 	service 	is 	an 	inappropriate 	restriction on
TALB's 	access 	rights 	guaranteed 	by 	the EERA. 	In Richmond/Simi,
supra, 	PERB 	construed 	as 	unreasonably 	restrictive 	a 	regulation
which 	similarly 	required 	materials 	to 	be 	submitted 	to District
management 	personnel 	prior 	to 	distribution.10 (Id. 	at 	5.)
-
After 	reviewing 	a 	substantial 	body of 	case 	law 	relating 	to 	the
rights 	of public employees 	to free expression, 	PERB 	stated:
The 	employer's 	interest 	in 	regulating 	speech
conduct on campus 	is 	fully protected, 	under
section 3543.1(b), 	by narrow guidelines and
by 	the 	deterrent 	threat 	posed 	by 	the
possibility of 	subsequent 	punishment 	for
unprotected behavior. 	(Id. 	at 	20 	[emphasis
supplied].)
In 	reaching 	this 	conclusion, 	PERB 	relied 	upon Pittsburg
Unified School District 	(2/10/78) 	PERB Decision No. 	47 	in which
the 	Board 	sanctioned 	discipline 	of 	employees 	for 	distribution
10	10The	The 	regulations in Richmond/Simi, 	supra, 	expressly
provided: 	"[t]his 	submission 	is 	not 	to be 	used 	as a prior
restraint or censorship." 	(Id. 	at 5 fn. 	2.)
40

of material 	found 	not 	to 	be 	protected 	by free 	speech 	rights 	or
the 	EERA.
The 	Board 	further 	stated:
. . . 	to 	the 	extent 	that 	a 	document 	does
breach 	requirements 	of 	school 	employee
discipline or operations, 	punishment 	after
distribution, 	constitutes 	an adequate
deterrent 	to 	organizational 	misconduct
. 	. 	. 	(Richmond/Simi, supra at 26.)
PERB 	has 	relied 	upon 	the 	Supreme Court 	case Bright 	v. 	Los
Angeles Unified School District 	(1976) 	18 Cal.3d 	450. 	There
the 	court 	was 	called 	upon 	to 	determine 	whether 	the 	right 	to
exercise 	"free 	expression" 	in section 	10611 	of 	the Education
Code 	also permitted 	school 	districts 	to 	require 	prior
submission of 	materials 	to 	be 	distributed on 	school premises
for 	prior 	approval. 	After 	analyzing 	numerous 	federal 	and 	state
decisions 	the 	court 	concluded 	that 	the 	Education Code 	expressly
afforded 	students 	certain 	rights 	of 	free 	expression 	and 	the
ability 	to 	utilize 	institutional 	facilities 	not 	unlike 	those 	in
the 	instant matter. 	The 	court 	also focused on the 	language 	of
the 	Education Code 	which 	permitted 	schools 	to prohibit 	certain
types of expression involving libel, 	slander, 	obscene
communications, 	etc. 	The 	court concluded 	that 	the 	right given
to a school district 	to prohibit 	these 	general 	forms 	of
communications 	should 	be:
. 	. 	. 	more reasonably construed as not
authorizing 	prior 	restraint 	but 	rather 	as
authorizing 	the 	stopping 	of 	such
distribution 	once 	begun 	and 	the 	imposition
41

of 	sanctions 	against 	those 	students
responsible for 	such distribution. 	(Id. 	at
462.)
The 	court went 	on 	to 	conclude 	that 	the Education Code
section 	in 	question 	did 	not 	grant 	schools 	"carte 	blanche 	to
enact 	regulations 	embodying 	constitutionally 	suspect 	prior
restraint 	systems." 	Rather, 	the Legislature intended 	to
establish 	certain 	guidelines 	prohibiting 	distribution 	of
"specified 	categories 	of 	objectionable material." 	The 	court
stated 	under 	such 	system:
. 	. 	. 	upon noncompliance with the
regulation, 	school 	authorities would be
authorized 	to 	stop distribution 	of 	the
offensive 	material 	and 	discipline 	those
responsible; 	they would not, 	however, 	be
authorized 	to 	prevent 	the 	distribution 	in
the 	first 	place 	through 	prior 	administrative
censorship or 	prior 	restraint 	of 	its
content. 	(Id. 	at 464 	[emphasis supplied].)
In addition to the 	above 	analysis, 	there are ample reasons
why 	the District 	should 	not 	be 	permitted 	to examine 	the 	content
of 	organizational materials 	at 	all. 	The District has
conditioned 	use 	of 	the 	school mail 	system 	upon 	its 	ability 	to
scrutinize 	communications 	of 	employee organizations. 	By doing
so, 	the District 	encroaches 	upon 	the 	confidentiality of 	certain
employee 	organizational 	communications 	to 	affected 	employees
and 	thereby 	gains 	an 	unfair 	advantage over 	the Association.
The District, 	as 	an employer, 	has 	an 	interest 	in knowing what
its 	employees 	are 	being 	told 	and 	can 	utilize 	information
derived 	from Association 	communications 	a 	day 	before 	they 	are
42

disseminated 	to 	influence matters 	relating 	to 	representation
which 	are 	of 	vital 	concern 	to 	the Association 	and District
employees.
Thus, 	Association communications 	relating 	to negotiation
positions, 	tactics, 	and progress 	could all be countered by
District 	communications 	at or 	about 	the 	same time or 	even
before 	the Association's 	communication 	was 	delivered.
Moreover, 	were 	the District 	to scrutinize 	every association
communication, 	it would 	have 	an 	unfair 	advantage 	during
election campaigns 	for 	exclusive 	representatives 	or
decertification of 	an exclusive 	representative. 	Finally, 	such
scrutiny could 	impact 	on 	the 	unfettered 	use of 	the 	grievance
procedures 	available 	to TALB 	and 	employees. 	Regardless 	of
whether 	the 	District would 	act 	on 	the 	information, 	disclosure
of 	confidential 	communications 	would 	chill 	communication.
The 	portion of 	the 	regulations 	which 	requires 	that 	the
District 	be 	given 	advance 	copies 	of 	any materials 	to be
distributed 	through 	the mail 	service 	is 	an 	unreasonable
restriction on 	the 	right 	to 	use 	that 	other means 	of
communication. 	The 	District may without 	advance 	scrutiny
remedy 	inappropriate 	communications 	with 	due 	process 	after 	the
fact. 	Pittsburg Unified School District, 	supra. 	In addition,
the 	unfair 	advantage 	and 	prejudice 	to 	the 	confidentiality of
such 	communication outweighs 	any 	burden 	placed 	upon 	the
District's mail 	system 	by 	denying 	the 	right 	to scrutinize
43

copies of 	association communications. 	(Richmond/Simi, 	supra at
18-19.)
It 	is 	thus 	concluded 	that 	the District 	should not 	be
permitted 	to scrutinize 	the 	content 	of 	publications 	sent
through 	the District mail 	service 	as 	a condition for 	utilizing
the 	service. 	This 	is 	so even 	if 	the 	communications 	are given
to 	the 	District 	concurrent 	with 	their 	distribution 	to
employees. 	While 	there would 	be 	no opportunity for 	prior
scrutiny in this 	instance, 	it 	fails 	to take 	into account 	that
certain 	communications 	sent 	to 	employees may not 	be meant 	for
the District's 	eyes 	at 	all. 	Should 	they at 	some later 	time
slip into District 	hands, 	that 	is 	different 	than 	requiring 	the
association 	sending 	them 	to 	disgorge 	their 	contents 	to
management.11
While 	the 	District 	should 	not 	be 	permitted 	to 	scrutinize
mailings for 	content, 	the District should 	be able 	to see the
material 	in packaged 	form prior 	to 	the 	time when 	they are 	to be
distributed. 	PERB 	has 	indicated 	that 	districts may 	regulate
11In 	Bright v. 	Los Angeles 	Unified School District,
supra, 	the Court suggested that material to be distributed 	be
submitted 	to 	school 	authorities 	"for 	informational 	purposes
only." 	(Id. 	at 	460.) 	However, 	in Bright, 	the 	document 	being
distributed 	was 	a 	newspaper 	which 	would 	be 	available 	to both
school 	authorities 	as well 	as 	the 	intended 	recipients, 	equally
at 	the 	time of 	distribution. 	Moreover, 	the court 	in Bright
assumed 	that 	informational 	copies 	of 	newspapers 	would 	be 	used
to 	obtain a court 	injunction 	to 	remedy 	any problems 	with 	the
publication, 	thus 	insuring 	due process 	as opposed 	to censorship
by 	individuals.
44

the 	time, 	place 	and manner 	of 	an 	activity so long 	as 	it does
not 	impinge upon content. 	(See Richmond/Simi, 	supra, 	at 19;
Long Beach Unified School District, 	supra, 	at 22; 	Lawrence
Livermore National Laboratory, 	supra, 	at 16.)
The 	record 	in 	this 	case 	reveals 	that 	the District 	requires
that 	materials 	to 	be distributed on 	the 	following day 	be
received 	in 	the mail 	room for 	sorting 	in 	the 	early 	afternoon.
The 	requirement 	that 	the materials 	be given 	to 	the District
representatives 	at 	9:00 	a.m. 	on 	the 	day 	prior 	to 	their
dissemination does 	not 	appear 	to be 	unreasonable 	in terms of
time. 	The 	three 	hours prior 	to the 	afternoon was 	to be
utilized 	by 	administrative 	personnel 	to 	review 	the 	content 	of
the material. 	The 	time 	is 	so close 	to that when the mail 	room
would 	have 	to 	have 	any mailings 	for 	distribution 	that 	one
cannot 	say 	that 	it 	is 	an 	unreasonable 	restriction on the 	use of
the mail 	system. 	(Ibid.) 	The District 	is 	entitled 	to view any
mailings for 	bulkiness, 	hazards 	and volume 	in advance of 	their
presentation 	for 	distribution. 	The 	purpose of 	such 	advanced
notice 	is 	to 	allow 	the mail 	room employees 	sufficient warning
of 	any 	unexpected 	distributions 	which may 	require 	a different
procedure 	than 	that 	normally 	followed.
It 	is 	found 	that 	the 	regulations 	to 	the extent 	that 	they
require 	that mail 	be given 	to 	the District 	at 	9:00 	a.m. 	on 	the
day 	before 	it 	is 	to be distributed are not 	an unreasonable
restriction 	for 	the 	limited 	purposes 	of 	determining 	the 	volume,
45

bulkiness 	and 	any 	other 	hazards 	that might 	be 	involved 	in such
a mailing. 	However, 	it has 	been 	found 	that 	the District 	is 	not
entitled 	to 	review 	the 	content 	of 	this material 	and thus 	the
regulations 	requiring 	"file copies" 	for 	the District 	of 	their
receipt 	by 	their 	employees 	are 	unreasonable 	cannot 	be 	enforced.
F. 	The 	District's Justification 	for 	its Content Regulations.
Paragraph 	3 	of 	the 	regulation 	interfaces 	with 	the
above-discussed 	claim of 	right 	to 	scrutinize materials 	before
they 	are distributed 	through 	the mail 	system. 	This 	paragraph
provides nine criteria, 	(a) 	through 	(i), which should be
utilized 	by management 	"in 	determining 	approvals" 	for 	mailing.
The 	District's 	attempts 	to 	regulate 	the 	content 	of
communication 	sent 	through 	its mail 	service 	are 	subject 	to
attack on three general grounds. 	First, 	the approval of
content 	is 	left 	to 	the 	unfettered 	discretion of District
administrators. 	In addition 	to 	allowing 	individual managerial
personnel 	to make 	determinations 	as 	to whether 	a 	communication
fits 	within 	the 	prohibited 	category 	set 	forth 	in 	the 	District's
regulation, 	there 	is 	no procedure 	afforded 	by the 	regulations
for 	prompt 	review 	of 	an 	administrative 	determination
prohibiting 	use of 	the mail 	service 	because of 	content. 	(See
Richmond/Simi, 	supra at 	25 and 22-23; 	and Bright v. 	Los Angeles
Unified School District, 	supra, 	18 Cal.3d 	at 460.)
Second, 	the 	content 	regulations 	on 	their 	face 	do not
establish 	that 	they 	are 	designed 	to preclude 	speech which, 	if
46

not 	restricted, 	would 	result 	in 	immediate 	harm to the
substantial 	interests 	of 	the District. 	Indeed, 	as PERB noted:
It 	is 	nearly 	certain 	that 	communications
distributed 	through 	the 	mail 	systems 	would
not 	inspire 	immediate 	violent 	conduct 	by the
readers 	or 	substantially 	impair 	any
essential 	school 	function 	. . . . 	(Id. 	at
26 	[footnote omitted].)
Additionally, 	the 	content 	regulations on their 	face do not
"provide 	standards 	tied 	to 	imminent 	unlawful 	conduct." 	(Id. 	at
25.) 	Thus, 	the 	content 	regulations 	do not justify why
materials 	cannot 	be 	sent 	through District mail 	service, 	yet
those 	same materials 	can 	be 	placed 	in mailboxes 	or 	on 	bulletin
boards 	or other 	District 	facilities 	regardless of. their
content. 	This distinction without 	a difference appears 	to make
the 	regulations 	artificial; 	raises 	question as 	to the 	need 	for
the 	regulations 	at 	all; 	and casts 	doubt on their
reasonableness. 	(16. 	at 22-23, 	28.) 	In this regard, the
District's 	argument 	is 	especially weak, 	in view of 	the fact
that 	it 	argues 	the Association could 	use 	the United States mail
to distribute 	the 	very 	same 	publications 	that would 	be 	arguably
prohibited 	by 	the 	content 	regulations. 	Clearly, 	an association
could 	address 	a 	document 	with material 	prohibited 	by 	Paragraph
3 of 	the 	regulations 	to 	the District 	for 	distribution 	in sealed
envelopes 	with postage 	paid 	to the 	various school 	sites. 	The
District would be 	assisting 	in carrying 	these materials, 	the
only distinction 	would 	be 	that 	postage 	would 	have 	been 	paid 	on
47

them. 	It 	is 	impossible 	to discern 	how the 	payment of 	the
United 	States 	postage 	would 	cure 	a defect 	which 	the District
contends 	goes 	to 	the 	inherent lawfulness 	of 	the 	document's
text.
Third, 	the 	record 	indicates 	that 	certain documents which
the Association 	sought 	to 	send 	through 	the mail 	service were
rejected 	by 	the District 	because 	in some 	small part 	they
ostensibly 	violated 	the 	content 	regulations. 	No distinction 	is
made 	between 	communications 	that 	are 	harmful 	in their 	entirety
and 	those 	that 	contain 	a de minimus 	statement which, 	when
- -
balanced 	against 	the 	entire 	communication, 	should 	not permit
the District 	to deny 	its 	transmittal. 	The 	record shows 	that
often 	the 	bulk of material may have 	nothing 	to do with 	the
areas proscribed 	by the District's 	regulations. 	However, 	one
small 	commercial 	advertisement 	contained 	in 	the 	newspaper 	has
been sufficient 	for 	the District 	to 	reject 	the 	entire
publication 	for 	transmittal 	through 	the mail 	service. 	The
District's 	regulations 	thus 	provide 	no way 	to appropriately
balance 	the 	injury to 	the 	right 	to 	utilize 	the 	system against
the 	harm of 	a 	single 	commercial 	advertisement 	or 	a 	single
derogatory 	sentence 	or 	line.
In 	addition 	to 	the 	general 	concerns 	which 	appear 	to make
the 	content 	regulations 	unreasonable, 	there 	are 	certain
specific problems 	with 	each 	of 	the District's 	regulations.
The 	first 	two 	limitations 	on mailings 	have 	been previously
48

discussed. 	These 	involve 	the 	Private Express 	Statutes 	and 	the
requirement 	that 	mailings 	may 	be 	limited 	to 	regular 	newsletters
and may not 	be 	directed 	to specific persons. 	The above
discussion 	concerning 	the 	Private Express 	Statutes 	as 	a defense
is 	applicable 	here. 	These 	criteria cannot 	be a basis for
denying 	the Association or 	affected 	employees 	access 	to 	the
District mail 	service.
Criteria f, g 	and 	h 	indicate 	that 	the District will 	not
approve any material that sanctions, 	induces, 	aids encourages,
abets 	or 	assists 	in any manner 	a strike, 	a disruption of
regular school operations; 	or 	destruction, 	alteration or
obliteration of 	any District property records, 	etc. 	The
District 	defends 	this 	criteria for 	approval 	because 	of 	the
no-strike provisions 	in 	the 	contract 	between 	the parties. 	It
is 	found 	that 	this 	is 	an 	unreasonable 	regulation of 	the 	right
to 	use 	the mail 	service. 	The 	contract 	by 	its own terms and of
its 	own 	nature 	has 	specific means 	of 	enforcement. 	The 	contract
contains 	a grievance procedure, 	and additionally, 	the contract
may 	be 	enforced 	in 	any 	state 	court. 	The District may not
condition 	the 	statutory right 	to 	use 	the District mail 	system
upon 	compliance 	with 	contractual provisions 	in a 	collective
agreement 	between 	the parties. 	To permit 	the District 	to do
so, 	places 	the exclusive 	representative, 	signatory to that
contract, 	at 	a disadvantage 	as 	opposed 	to other 	organizations
not 	signatory. 	If 	the District 	contends 	that 	the provisions
49 
•

were 	applicable 	to all organizations, 	then the 	contractual
bases 	for 	these 	provisions 	must 	fail. 	If 	the District only
applies 	these provisions 	to the exclusive 	representative, 	then
it 	is discriminatory. 	Moreover, 	the Legislature could not 	have
intended 	that 	the District 	achieve 	a 	contract 	enforcement
advantage 	by 	placing 	conditions 	upon 	statutory rights 	within
the 	control of 	the District. 	Thus, 	the District's
justification 	for 	these provisions must 	also fail.
Sections 	c 	and 	d of 	the 	content provisions 	of 	the
regulations 	appear 	to be 	based 	upon 	"language" 	in
Richmond/Simi, 	supra. 	Section c 	states 	that 	any material which
"inspires 	immediate 	violent 	conduct 	by 	readers 	or 	substantially
impairs 	any school 	function shall 	not 	be 	sent 	through 	the
school mail 	service." 	Section d provides 	that 	any material
critical 	of 	public 	school 	officials 	with 	"actual malice 	or
reckless 	disregard 	for 	the 	truth" 	shall 	not 	be 	sent 	through 	the
District mail 	service. 	While 	this 	language quoted 	in the
regulations 	appears 	to be found 	in Richmond/Simi, 	supra, 	at 26,
27, 	clearly 	the Board 	did 	not 	adopt 	these 	general 	statements 	as
a permissible precondition 	to use 	of 	a district's mail 	system.
PERB 	was merely 	stating 	that 	certain 	types 	of 	communications
might 	be 	prohibited 	when 	due 	process 	and 	explicit 	language
provided for 	their 	prohibition. 	(See Richmond 	and/Simi, 	supra,
at 	20-28.)
Paragraph 	e of 	the 	content 	regulations 	provides 	that 	no
approval 	shall 	be 	given 	to 	any 	communication:
50

. 	. 	. 	which urges the passage or defeat of
any 	school measure 	of 	the 	District
including, 	but not limited to, 	the candidacy
of 	any person 	for 	election 	for 	the 	governing
board of the District 	. 	. 	.
The 	District 	states 	that 	this 	limitation on communications 	is
sanctioned 	by 	section 	7054 of 	the Education Code. 	That 	section
provides as 	follows:
Except 	as 	provided 	. . . 	no 	school
district . 	. 	. funds, services, supplies, or
equipment 	shall 	be 	used 	for 	the 	purpose of
urging 	the 	passage 	or 	defeat 	of 	any school
measure of 	the district, 	including, 	but not
limited 	to, 	the 	candidacy of 	any person for
election 	to 	the 	governing 	board of 	the
district.
The 	District 	contends 	it 	would 	be 	in violation of 	this
section of 	the Education Code 	if 	it permitted 	the 	use of 	its
mail 	service 	for 	communications 	by 	the Association 	to 	its
members 	concerning 	such 	issues 	and 	activities. 	Indeed 	the
record 	reflects 	that 	such 	a 	communication was 	intercepted 	and
returned 	to 	the Association 	by 	the District.
Section 	3540 	of 	the EERA provides 	in relevant part:
Nothing 	contained 	herein 	shall 	be 	deemed 	to
supersede 	other 	provisions 	of 	the Education Code
and 	rules 	and 	regulations 	of 	public school
employers 	which 	establish 	and 	regulate 	tenure 	or
a merit 	civil 	service 	system or 	which 	provide
for 	other 	methods 	of 	administering
employer-employee 	relations, 	so long 	as the
rules 	and 	regulations 	or 	other 	methods of 	the
public 	school 	employer 	do 	not 	conflict 	with
lawful 	collective 	agreements.
Section 	3540 	of 	the EERA must 	be 	presumed 	to 	have 	been passed
by 	the 	Legislature with 	full 	knowledge 	of 	the 	provisions 	extant
51

in 	the Education Code 	to 	the 	extent 	that 	the provisions 	of 	the
Education Code 	appear 	to be 	in conflict with the EERA. 	PERB
has 	sought 	to, 	wherever 	possible, 	harmonize the two statutes.
(Compare, 	Solano County Community College District 	(6/30/82)
PERB Decision 	219 	at 12-16; 	Kaplan's Fruit 	and Produce Company
v. 	Superior Court 	(1979) 	26 Cal.3d 60, 	75; 	Certificated
Employees Counsel 	v. 	Monterey 	Peninsula Unified School District
(1974) 	42 Cal.App.3d 	328.)
The 	Education Code 	section 	upon which 	the District 	relies,
expressly prohibits 	the 	use 	of District 	facilities 	for 	urging
passage 	of 	school measures, 	including 	the 	candidacy of 	school
board members. 	The 	statutory language 	is clear. 	The
District's 	reliance 	upon 	it 	to 	refuse 	to carry political
communications 	of 	the 	nature 	expressly 	defined 	by 	the 	statute
is 	reasonable. 	However, 	as discussed above, 	any express
limitations 	placed 	upon 	communications must 	be 	based 	upon
clear, 	objective standards, 	applied without discrimination, 	and
accorded 	full 	due process.
Finally, 	Paragraph 	i of 	the 	regulations 	relating to
content 	states 	that 	no 	"publication shall 	contain material
violative 	of 	the 	law." 	This provision 	is 	ambiguous 	and vague.
It is unclear what "the law" 	is: 	civil, 	criminal,
administrative, contracts, etc. 	Moreover, because there are
other 	remedies 	for 	violations 	of 	"the 	law" 	separate 	and apart
from 	the 	regulations of 	the District, 	there 	is 	no reason to
52

justify 	this 	basis 	for 	prior 	restraint 	of 	communications 	by the
association. 	The 	"sweeping" 	term law, 	without more, 	is
indefinite 	and 	overbroad 	and 	can 	apply 	to matters 	concerning
which 	the District 	has 	no legitimate 	interest. 	(Richmond/Simi,
supra, 	at 21 and 24.)
For 	all of 	the above 	reasons, 	general and specific, 	the
content 	regulations 	in paragraph 	3 	are 	an 	unreasonable
restriction on 	the 	use of 	the mail 	service.
G. 	Alternatives 	to 	the Use 	of 	the District Mail Service.
The 	District 	repeatedly argues 	in 	its Brief 	and
inferentially 	by 	its 	examination of 	witnesses 	during 	the
hearing 	that 	the Association 	has 	available 	to 	it 	alternatives
to use 	of 	the mail 	service. 	The District points 	to the
availability of 	school 	bulletin boards, 	the 	accessibility of
employee mail 	boxes 	and 	the 	use 	of 	the United States Mail 	as
alternative 	sources 	to 	use of 	the mail 	service. 	PERB has
already 	determined 	that 	the 	availability of 	alternatives 	is 	not
a 	basis 	for 	reasonable 	restriction of 	access 	afforded 	by
statutory right. 	(See Richmond/Simi, 	supra, 	at 28 fn. 	11;
Wilson v. 	The University of California at Berkeley, 	supra;
contrast California Department 	of Transportation 	(7/7/81) 	PERB
Decision No. 	159b-S 	which 	involved 	different 	statutory
provisions 	than those 	at 	issue 	here.) 	The 	record 	evidence 	also
shows 	that 	the 	use of 	the United 	States Mail 	is 	not 	an
effective 	alternative 	to 	the District mail 	system. 	The 	record
53

establishes 	that 	generally 	the mail 	service 	provides 	next 	day
delivery. 	The United States Mail 	service 	does 	not 	enjoy a
similar 	track 	record. 	Thus, 	the District's 	justification of
its 	restrictions 	based 	upon 	alternatives 	available 	to 	the
Association 	is 	rejected.
H. 	The Alleged Violations 	of EERA Section 3543.5(a) 	and 	(b).
Pursuant 	to the discussion above, 	it 	is found that
charging 	party, 	other 	employee 	organizations 	and 	employees
enjoy 	a 	statutory 	right 	to 	utilize 	a District mail 	service
pursuant 	to 	3543.l(b). 	Having also shown that 	employees 	have 	a
concomitant 	right 	to "form, 	join 	and 	participate 	in 	activities
and employee organizations 	. 	. 	." 	charging party has
established 	a 	prima facie 	case 	that 	these 	rights 	were 	denied 	to
TALB, 	other 	organizations 	and employees 	by 	the District. 	The
regulations 	of 	the District 	restrict 	the 	right 	of 	employee
organizations 	and 	employees 	to use 	the mail 	system and 	there 	is
a 	nexus 	between 	the 	restriction 	in 	the District's 	regulations
and 	the 	exercise 	of 	these 	rights 	by 	those protected 	pursuant 	to
the EERA. 	The District 	has 	failed 	to 	establish that 	its
restrictions 	on 	these 	employee 	rights 	are 	justified 	and
reasonable 	on 	their 	face. 	Nor 	are 	they justified 	in 	any 	record
evidence 	of 	legitimate 	concerns 	of 	the 	employer 	in operating
the 	school 	district 	which outweigh 	the 	interests 	of TALB 	and
employees 	of 	the 	District 	in using 	the mail 	service.
Therefore, 	the District's 	regulations violate 	3543.5(a) 	and 	(b)
54

of 	the EERA 	(see Carlsbad Unified School District, 	supra, 	at
10-11; 	Richmond/Simi, supra, 	at 29; Lawrence Livermore National
Laboratory, 	supra, 	at 17; 	cf. 	San Ramon Valley Unified School
District 	(8/9/82) 	PERB Decision No. 	230 at 	13.)
I. 	The Alleged Violation of EERA Section 	3543.5(c).
Charging 	party alleges 	that 	the 	District 	also 	violated
section 	3543.5 (c) 	of the EERA. 	However, 	nowhere in charging
party's 	brief, 	nor 	during 	the 	course of 	the hearing has 	it
shown 	the 	theory 	upon which 	it make	. . + 	s 	this 	allegation.
Moreover, 	there 	is 	little or 	no evidence 	in the 	record 	to
support 	a refusal 	to bargain. 	It 	is 	therefore 	found 	that 	the
Association 	has 	not 	established 	a 	violation of 	section
3543.5(c) 	of 	the EERA and 	this 	portion of 	the Charge 	should 	be
dismissed.12
THE 	REMEDY
It 	is 	appropriate 	to order 	the District 	to cease 	and
desist 	from 	enforcing 	the 	regulations 	which 	unreasonably
restrict 	the Association's 	and the 	employees' 	right 	to 	use 	the
District mail 	service. 	Such 	an Order 	is 	consistent with
section 	3541.5(c) 	of 	the Educational Employment Relations Act
which 	gives 	PERB:
. 	. 	. 	the power 	to issue a decision and
order 	directing 	an offending 	party 	to 	cease
1 2 A S amended, 	the Charge appears 	to only allege a
violation of 	3543.5(a) 	and 	(b). 	However, 	since there is no
indication 	that 	the Amendment 	superseded 	the 	original Charge,
it 	is 	necessary 	to 	resolve 	the 	question of 	whether 	charging
party has 	established a violation of 	3543.5(c) 	as well.
55

and 	desist 	from 	the 	unfair 	practice 	and 	take
such 	affirmative 	action, 	including but 	not
limited 	to 	the 	reinstatement 	of 	employees
with or 	without 	backpay as 	will 	effectuate
the policies of 	this chapter.
The Cease 	and 	Desist Order 	in 	this 	case 	is 	necessary to
insure 	that 	employees 	and 	employee 	organizations 	will 	be
guaranteed 	their 	statutory 	rights 	to 	utilize 	the 	District mail
service. 	The Cease 	and Desist Order 	will 	insure 	that 	the
District 	does 	not 	impose 	regulations 	which 	cannot 	be 	justified
as 	reasonable 	and 	consistent 	with 	the 	operational 	necessity
inherent 	in governing 	a 	school 	district.
It 	also 	is 	appropriate 	that 	the District 	be 	required 	to
post 	a notice 	incorporating 	the 	terms of 	the order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the District
indicating 	that 	it will 	comply with the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such a notice
will 	provide 	employees 	with notice 	that 	the District 	has 	acted
in 	an 	unlawful manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from 	this 	activity. 	The 	notice 	effectuates 	the purposes 	of 	the
EERA that 	employees 	be 	informed of 	the 	resolution of 	the
controversy and 	will 	announce 	the 	District's 	readiness 	to
comply 	with 	the 	ordered 	remedy. 	(See Placerville Union School
District 	(9/18/78) 	PERB Decision No. 	69.) 	In Pandol and Sons
v. 	ALRB and UFW 	(1979) 	98 Cal.App.3d 	580, 	587, 	the California
District Court 	of Appeal 	approved 	a posting 	requirement. 	The
U.S. 	Supreme Court 	approved 	a 	similar 	posting 	requirement 	in
NLRB v. Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
56

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 	3541.5 (c) 	it 	is 	hereby ordered 	that Long Beach
Unified 	School 	District 	and 	its 	representatives 	shall:
1. 	CEASE 	AND DESIST 	FROM:
(a) 	Unreasonably 	denying 	by written 	administrative
regulations 	or 	other 	policies 	the 	right 	of 	an 	employee
organization 	to 	send 	and 	receive 	communications 	to 	and 	from
employees 	through 	the 	District 	mail 	service 	pursuant 	to 	section
3543.1(b), of 	the 	Educational 	Employment 	Relations Act 	for 	the
purpose 	of 	communicating with 	the 	employees, 	and 	further;
(b) 	The District 	shall 	cease 	from 	interfering 	with
the 	rights 	of 	the 	employees 	pursuant 	to 	section 	3543 	by 	the
promulgation 	of 	such 	policies 	and 	regulations.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION WHICH 	IS
DESIGNED TO 	EFFECTUATE 	THE 	PURPOSES 	OF 	THE 	EDUCATIONAL
EMPLOYMENT 	RELATIONS 	ACT:
(a) 	Rescind 	all 	regulations 	inconsistent 	with 	this
Decision 	and 	Order;
(b) 	Within five 	(5) 	calendar 	days after 	this decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the NOTICE TO
EMPLOYEES 	attached 	as 	an 	appendix hereto, 	for 	at 	least 	30
workdays 	at 	its 	headquarters 	office 	and 	in 	conspicuous 	places
at 	the 	locations 	where 	notices 	to 	certificated 	employees 	are
customarily 	posted. 	It must 	not 	be 	reduced 	in 	size 	and
57

reasonable 	steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not 	defaced,
altered 	or 	covered 	by 	any material;
(c) 	Within 	20 	consecutive 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 	the 	charging 	party 	herein.
IT 	IS 	FURTHER ORDERED THAT 	the 	charging party's 	allegation
that 	the District 	violated Government Code 	section 	3543.5(c) 	by
its 	adoption of 	regulations 	concerning 	the 	use of 	the mail
service 	IS 	HEREBY DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed Decision and Order 	shall
become 	final 	on 	November 	8 	, 	1982, 	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 £or 	such
exceptions. 	See California Administrative Code, 	title 8,
part 	III, 	section 	32300. 	Such statement of exceptions and
supporting 	brief 	must 	be 	either 	actually 	received 	by 	the 	Public
Employment Relations Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.)
58

on 	November 	8 	, 	1982, 	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 	service 	shall 	be 	filed with 	the Board
itself. 	See California Administrative Code, 	title 8, 	part III,
sections 	32300 	and 	32305 	as 	amended.
Dated: 	October 19, 	1982
Stephen H. 	Naiman
Administrative 	Law 	Judge
59