State of California (Department of Transportation) (State Trial Attorneys Association) (PERB 0159SB)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE TRIAL ATTORNEYS ASSOCIATION,
Charging Party, 	Case No. S-CE-2-S
v . 	PERB Decision No. 159b-S
STATE OF CALIFORNIA, CALIFORNIA
DEPARTMENT OF TRANSPORTATION, and July 7, 1981
GOVERNOR'S OFFICE OF EMPLOYEE
RELATIONS ,
Respondents.
Appearances: Elias D. Bardis and Ronald W. Beals, Attorneys
for State Trial Attorneys Association; Barbara T. Stuart and
Stephanie Sakai, Attorneys for State of California, Governor's
Office of Employee Relations and California Department of
Transportation.
Before Gluck, Chairperson; Jaeger, Moore and Tovar, Members.
DECISION
Both the State Trial Attorneys Association (hereafter STAA)
and the respondents, the Governor's Office of Employee
Relations (hereafter GOER) and California Department of
Transportation (hereafter Caltrans) have filed exceptions to
the hearing officer's decision which found both the Caltrans
memorandum of August 1, 1978 and the GOER memorandum of
September 5, 1978 to be in violation of sections 3519(a), (b) ,
and (d) of the State Employer-Employee Relations Act
STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
STATE 	TRIAL 	ATTORNEYS 	ASSOCIATION,
Charging 	Party,
v.
STATE 	OF CALIFORNIA, 	CALIFORNIA
DEPARTMENT 	OF 	TRANSPORTATION, 	and
GOVERNOR'S 	OFFICE 	OF EMPLOYEE
RELATIONS,
Respondents.
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Case 	No. 	S-CE-2-S
PERB 	Decision 	No. 	159b-S
July 	7, 	1981
Appearances: 	Elias 	D. 	Bardis 	and 	Ronald 	W. 	Beals, 	Attorneys
for 	State 	Trial 	Attorneys 	Association; 	Barbara 	T. 	Stuart 	and
Stephanie 	Sakai, 	Attorneys 	for 	State 	of 	California, 	Governor's
Office 	of 	Employee 	Relations 	and 	California 	Department 	of
Transportation.
Before 	Gluck, 	Chairperson; 	Jaeger, 	Moore 	and 	Tovar, 	Members.
DECISION
Both 	the 	State 	Trial 	Attorneys 	Association 	(hereafter 	STAA)
and 	the 	respondents, 	the 	Governor's 	Office 	of 	Employee
Relations 	(hereafter 	GOER) 	and 	California 	Department 	of
Transportation 	(hereafter 	Caltrans) 	have 	filed 	exceptions 	to
the 	hearing 	officer's 	decision 	which 	found 	both 	the 	Caltrans
memor 	um 	of 	August 	1, 	1978 	and 	the 	GOER memorandum 	of
September 	5, 	1978 	to 	be 	in 	violation 	of 	sections 	3519 (a), 	(b),
and 	(d) 	the 	State 	Employer-Employee 	Relations 	Act

(hereafter SEERA) . . These findings were based on
determinations that the memoranda, which limited use of the
state's internal mail system: were vague, uncertain, ambiguous
and chilled communication between employees; violated rights of
employee organizations to communicate with their members or
prospective members in an effort to organize and represent
employees; and denied employee organizations equal access,
respectively. For the reasons that follow, the Public
Employment Relations Board (hereafter PERB or the Board)
affirms in part, and reverses in part, that decision.
FACTS
The facts of this case arose during the time period
surrounding July 1, 1978, the date SEERA became effective.
SEERA provides that the approximately 140,000 civil service
employees of the State of California may select employee
organizations to be their exclusive representatives in
appropriate units which the PERB was empowered to determine.
Pursuant to PERB's administrative regulation 41010(a) , 2 any
employee organization seeking to file a petition to determine
such an appropriate unit was required to file its petition
SEERA is codified at Government Code section 3512 et
seq. All statutory references are to the Government Code
unless otherwise noted.
2PERB administrative regulations are located in the
California Administrative Code, title 8, section 31000 et seq.
Hereafter, PERB's administrative regulations will be referred
to as PERB Rules.
1,
41010(a),
sEERA
PERB 8,
2
(hereafter 	SEERA). 1 	These 	findings 	were 	based 	on
determinations 	that 	the 	memoranda, 	which 	limited 	use 	of 	the
state's 	internal 	mail 	system: 	were 	vague, 	uncertain, 	ambiguous
and 	chilled 	communication 	between 	employees; 	violated 	rights 	of
employee 	organizations 	to 	communicate 	with 	their 	members 	or
prospective 	members 	in 	an 	effort 	to 	organize 	and 	represent
employees; 	and 	denied 	employee 	organizations 	equal 	access,
respectively. 	For 	the 	reasons 	that 	follow, 	the 	Public
Employment 	Relations 	Board 	(hereafter 	PERB 	or 	the 	Board)
affirms 	in 	part, 	and 	reverses 	in 	part, 	that 	decision.
FACTS
The 	facts 	of 	this 	case 	arose 	during 	the 	time 	period
surrounding 	July 	1978, 	the 	date 	SEERA 	became 	effective.
SEERA 	provides 	that 	the 	approximately 	140,000 	civil 	service
employees 	of 	the 	State 	of 	California may 	select 	employee
organizations 	to 	be 	their 	exclusive 	representatives 	in
appropriate 	units 	which 	the 	PERB 	was 	empowered 	to 	determine.
Pursuant 	to 	PERB's 	administrative 	regulation 	2 	any
employee 	organization 	seeking 	to 	file 	a 	petition 	to 	determine
such 	an 	appropriate 	unit 	was 	required 	to 	file 	its 	petition
1 	is 	codified 	at 	Government 	Code 	section 	3512 	et
seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	noted.
2 	administrative 	regulations 	are 	located 	in 	the
California 	Administrative 	Code, 	ti 	e 	section 	31000 	et 	seq.
Hereafter, 	PERB's 	administrative 	ions 	11 	be 	referred
to 	as 	PERB 	Rules.
2

before August 31, 1978. Such petition was to be supported by
authorizations of at least 30 percent of the employees in the
proposed unit. 3
One employee organization involved in gathering support for
its petition was STAA, which until then had represented
Caltrans attorneys who worked in the legal offices located in
Sacramento, San Francisco, Los Angeles, and San Diego. In an
effort to organize other attorneys employed by the state, STAA
worked with another employee organization, the Association of
California State Attorneys (hereafter ACSA) , to compile a
mailing list of the almost 2,000 state attorneys and
administrative law judges. ACSA used the list of names and
business addresses for at least three mailings and then turned
the list over to STAA in May 1978. STAA then sent three
separate mailings to the names on the list over the next two
months. 	Approximately five percent of each of these mailings
was returned although no evidence was presented during the
hearings which attributed these returned mailers to a refusal
by the state to deliver them. During July 1978, STAA had an
artist prepare, at a cost of approximately $300, a prototype
for a mailer which was to have been sent in August 1978.
As a result of the mailings, STAA obtained approximately
300 authorizations which fell short of the approximately 495
3PERB Rule 41010 (b) (3) (C) .
W
STAA,
$300,
was
before
	August
	31, 	1978.
	Such
	petition
	was
	to
	be
	supported
	by
authorizations
	of
	at 	least
	30
	percent 	of 	the
	employees
	in 	the
proposed
	unit.3
One
	employee
	organization
	involved 	in
	gathering
	support 	for
its
	petition
	was 	which
	until
	then
	had
	represented
Caltrans 	attorneys
	who 	worked
	in 	the
	legal 	offices
	located
	in
Sacramento,
	San
	Francisco,
	Los
	Angeles,
	and 	San
	Diego. 	In
	an
effort
	to
	organize 	other 	attorneys
	employed
	by
	the
	state,
	STAA
worked
	with 	another
	employee
	organization,
	the
	Association 	of
California 	State
	Attorneys
	(hereafter
	ACSA),
	to
	compile
	a
mailing
	list
	of 	the 	almost
	2,000
	state
	attorneys
	and
administrative
	law
	judges.
	ACSA
	used
	the
	list
	of
	names 	and
business 	addresses
	for
	at 	least
	three 	mailings
	and
	then
	turned
the
	list
	over
	to
	STAA
	in
	May
	1978.
	STAA
	then
	sent 	three
separate 	mailings 	to
	the
	names 	on
	the
	list
	over
	the 	next
	two
months. 	Approximately
	five 	percent 	of
	each
	of 	these 	mailings
was
	returned 	although
	no
	evidence
	was
	presented 	during 	the
hearings
	which
	attributed
	these 	returned 	mailers 	to
	a
	refusal
by
	the
	state
	to 	deliver
	them. 	During
	July 	1978,
	STAA
	had
	an
artist
	prepare,
	at
	a
	cost 	of 	approximately
	a
	prototype
for
	a
	mailer	
which
	to
	have 	been	
sent	
in 	August
	1978.
As 	a
	result 	of 	the 	mailings,
	STAA
	obtained 	approximately
300	
authorizations	
which
	fell
	short 	of
	the 	approximately 	495
3PERB 	Rule 	41010
(b) (3) (C).
3

needed to petition for a statewide unit of attorneys. As an
alternative, STAA petitioned for a unit of Caltrans attorneys
only and consequently participated fully in the SEERA unit
determination hearings. In addition, STAA had a sufficient
number of authorizations to intervene and appear on the ballot
in the Statewide Attorney and Hearing Officer Unit which PERB
found appropriate. " In the Matter of: Unit Determination for
State of California (11/7/79) PERB Decision No. 110-S.
Some time prior to August 1, 1978, the State Employees
Trades Council (hereafter SETC) also mailed approximately 3,500
letters to Caltrans employees throughout the state. Receipt of
this mail caused supervisors to raise the question of whether
it should be delivered. Caltrans' administration, relying on
section VII C. 3 of the Caltrans procedure manual,
Administration of Employer-Employee Relations Policies and
4 	B Rule 41230 (a) provides:
Within 30 days following service of notice
of a valid request to conduct an election in
any unit determined by the Board to be
appropriate any employee organization,
whether or not a party to the unit hearing,
may file an original and three copies of an
intervention to appear on the ballot. 	The
intervention shall be filed at the
Sacramento Regional Office on forms provided
by the Board. The intervention shall be
accompanied by proof of support of at least
10 percent of the state employees in the
appropriate unit.
needed
	to
	petition
	for
	a
	statewide
	unit
	of
	attorneys.
	As
	an
alternative,
	STAA
	petitioned
	for
	a
	unit 	of Caltrans 	attorneys
only
	and
	consequently
	participated 	fully
	in 	the
	SEERA
	unit
determination 	hearings. 	In
	addition,
	STAA
	had
	a
	sufficient
number
	of
	authorizations 	to 	intervene
	and
	appear
	on
	the
	ballot
in
	the
	Statewide 	Attorney
	and
	Hearing
	Officer
	unit
	which
	PERB
4	
found
	appropriate.	
In 	the
	Matter
	of:
	Unit 	Determination
	for
State 	of 	California
	(11/7/79)
	PERB
	Decision
	No.
	110-S.
Some
	time
	prior
	to
	August
	1,
	1978,
	the
	State
	Employees
Trades 	Council
	(hereafter
	SETC)
	also
	mailed 	approximately 	3,500
letters	
to	
Caltrans
	employees
	throughout 	the
	state.
	Receipt 	of
this
	mail 	caused
	supervisors 	to
	raise
	the
	question 	of
	whether
it
	should
	be
	delivered. 	Caltrans' 	administration, 	relying
	on
section
	VII
	C. 	3
	of 	the
	Caltrans
	procedure
	manual,
Administration 	of
	Employer-Employee
	Relations
	Policies
	and
4PER	
PERB
	Rule 	41230(a)
	provides:
Within
	30
	days 	following
	service 	of 	notice
of
	a
	valid 	request 	to
	conduct
	an
	election
	in
any
	unit
	determined
	by
	the
	Board
	to
	be
appropriate
	any 	employee
	organization,
whether
	or 	not
	a
	party 	to 	the
	unit 	hearing,
may
	file
	an
	original	
and	
three 	copies 	of
	an
intervention 	to
	appear
	on
	the
	ballot.
	The
intervention 	shall
	be
	filed 	at
	theSacramento 	Regional 	Office
	on 	forms
	provided
by 	the 	Board.
	The
	intervention 	shall
	be
accompanied 	by
	proof 	of 	support 	of
	at 	least
10
	percent 	of 	the
	state
	employees 	in 	the
appropriate 	unit.
4

Procedures No. P75-40, a 	possibly the guidelines of the
Office of Employee Relations, issued the following
memorandum with blind carbon copies sent to the employee
section VII. SPECIFIC DEPARTMENT
C. 	Use of State-owned Equipment
An employee, employee who is an
organizational representative, or
employee organization:
3. 	Will not be allowed to use the
State's or Caltrans' mail
distribution system for their
publications.
6These guidelines provide in pertinent part:
B. 	Access to Work Locations
* * :
Distribution
* * *
1 . 	With regard to the distribution
and posting of employee
organization material, employee
organizations should be provided
with a reasonable opportunity to
communicate with their members and
other State employees.
2 . 	A reasonable alternative
should be provided where work area
access is denied.
5 . 	The State mail service should not
be utilized for distribution of
employee organization mail unless
there is no other method of
distributing material.
UT
Procedures
	No.
	P75-40,5nd
and
	possibly
	the
	guidelines 	of
	the
Office
	of
	Employee
	Relations,
6	
issued 	the
	following
memorandum
	with
	blind
	carbon
	copies
	sent 	to
	the
	employee
5
5section
	VII.
	SPECIFIC
	DEPARTMENT
C. 	Use
	of
	State-owned
	Equipment
An
	employee,
	employee
	who
	is
	an
organizational 	representative,
	or
employee
	organization:
3. 	Will
	not
	be
	allowed
	to
	use
	the
State'sor
	Caltrans'
	mail
distribution
	system
	for
	theirpublications.
6
These
	guidelines
	provide 	in
	pertinent 	part:
B.
	Access
	to
	Work
	Locations
* * *
Distribution
1.
	With
	regard
	to
	the
	distribution
and
	Eosting
	of
	employee
organization 	material,
	employee
organizations
	should
	be
	provided
with
	a
	reasonable 	opportunity 	to
communicate
	with
	their
	members 	and
other 	State
	employees.
* 	* 	*
* 	* 	*
2.
	.
	..
	A
reasonable
	alternative
should
	be
	provided
	where 	work
	areaaccess
	is
	denied.
* 	*	*
5.
	The
	State
	mail
	service
	should 	not
be	
utilized	
for	
distribution
	of
employee
	organization 	mail 	unless
there
	is
	no
	other
	method
	of
distributing 	material.
5

organizations which represented Caltrans employees, including
STAA :
MEMORANDUM 	Date : 	August 1, 1978
To: 	District Directors of Transportation
Division Chiefs
Assistant Directors
Deputy Directors
From : 	Department of Transportation
Division of Administrative Services
Personal Mail
It has been Caltrans policy to not permit
the distribution of personal mail to
individual employees through the State and
Caltrans mail systems.
It has recently come to our attention that
an employee organization has attempted to
distribute, in volume, employee organization
literature to Caltrans employees by
utilizing the U.S. Postal Service mails and
Caltrans mailing address with the
expectation that Caltrans would distribute
the mail to designated individual employees.
In the past, when we have been aware of such
volume personal mailings, we have returned
the mail to the sender as undeliverable. It
will be our practice to continue doing this
in the future.
The purpose of our policy, which applies
equally to private individuals, businesses
and employee organizations who have not
received an official State business
sanction, is to minimize unnecessary expense
to the State in terms of distribution costs.
We are not censors and are not expected to
review each piece of mail that is received.
However, when it is obvious that we are
receiving mail which is not related to State
business, then we are obligated to return it
to the post office.
6
organizations
	which
	represented 	Caltrans
	employees,
	including
STAA:
MEMORANDUM	
Date:
	August
	1,
	1978
To:
	District
	Directors 	of 	TransportationDivision 	Chiefs
Assistant 	Directors
Deputy
	Directors
From:
	Department
	of
	TransportationDivision
	of
	Administrative 	Services
Personal
	Mail
It
	has
	been
	Caltrans 	policy
	to 	not 	permit
the
	distribution
	of
	personal
	mail
	to
individual
	employees
	through
	the
	State
	and
Caltrans
	mail 	systems.
It
	has
	recently
	come
	to
	our
	attention 	that
an 	employee
	organization
	has
	attempted 	to
distribute,
	in
	volume, 	employee
	organization
literature
	to 	Caltrans
	employees	
by
utilizing
	the
	U.S.
	Postal
	Service mails
	and
Caltrans
	mailing 	address 	with 	the
expectation
	that
	Caltrans
	would
	distribute
the 	mail
	to 	designated 	individual
	employees.
In 	the
	past,
	when
	we
	have 	been 	aware
	of
	such
volume
	personal 	mailings,
	we
	have
	returnedthe 	mail
	to 	the 	sender 	as
	undeliverable.
	It
will
	be
	our
	practice
	to 	continue
	doing
	this
in 	the 	future.
The
	purpose
	of 	our
	policy,
	which
	appliesequally 	to 	private 	individuals, 	businesses
and
	employee	
organizations
	who	
have	
not
received
	an
	official
	State 	business
sanction, 	is
	to
	min1m1ze
	unnecessary 	expense
to 	the
	State
	in 	terms
	of
	distribution 	costs.
We	
are 	not 	censors
	and
	are 	not 	expected 	toreview 	each
	piece 	of 	mail
	that 	is 	received.
when
	it
	is
	obvious
	that
	we
	are
receiving 	mail
	which
	is
	not 	related 	to 	State
business, 	then
	we
	are 	obligated 	to 	return
	it
to 	the 	post 	office. 
6
However,

Please remind your organization mail receipt
and distribution unit and your managers of
the need to be aware of this policy. If you
have any questions about individual cases,
please contact Len Allenbaugh (482-3305) in
Headquarters Business Management.
/s/ G. V. Hood
G. V. Hood, Chief
Division of Administrative Services
After issuance of the memorandum, the San Francisco
District Office of Caltrans returned as nondeliverable
approximately 100 mailers to SETC. The employee organization
protested to the GOER. During the discussions which followed,
GOER informed SETC and STAA that the state had no obligation to
distribute nonbusiness mail, including that from employee
organizations, but it indicated a willingness to reach
alternatives to mail delivery and, accordingly, explored
various possibilities with the organizations. 	As a result of
the discussions, the SETC mailers were delivered to Caltrans
administration which had the material distributed. 	STAA made
no attempts after issuance of the memorandum on August 1, 1978
to contact state attorneys by mailing to their business
addresses.
Following the discussions with SETC and STAA, GOER issued a
memorandum which was sent on September 27, 1978 to employee
organizations registered with GOER, including STAA. The
memorandum reads as follows:
7
STAA,
27,
as 	follows:
Please
	remind 	your
	organization
	mail
	receipt
and
	distribution
	unit
	and
	your 	managers
	of
the
	need
	to
	be
	aware
	of
	this
	policy.
	If
	you
have
	any
	questions
	about
	individual 	cases,please 	contact
	Len
	Allenbaugh
	(482-3305)
	inHeadquarters 	Business
	Management.
/s/
	G. 	V. 	Hood
G. 	V. 	Hood,
	Chief
Division 	of 	Administrative 	Services
After 	issuance 	of
	the
	memorandum,
	the
	San
	Francisco
District
	Office 	of 	Caltrans 	returned
	as
	nondeliverable
approximately
	100
	mailers 	to
	SETC. 	The
	employee
	organization
protested
	to
	the
	GOER.
	During
	the
	discussions
	which
	followed,
GOER
	informed
	SETC
	and
	STAA
	that
	the
	state
	had
	no
	obligation
	to
distribute
	nonbusiness
	mail, 	including
	that
	from 	employee
organizations,
	but
	it
	indicated
	a
	willingness 	to
	reach
alternatives
	to
	mail
	delivery
	and,
	accordingly, 	explored
various
	possibilities
	with
	the 	organizations.
	As
	a
	result
	of
the
	discussions,
	the
	SETC
	mailers
	were
	delivered 	to 	Caltrans
administration
	which 	had
	the 	material 	distributed.
	STAA
	made
no
	attempts
	after
	issuance 	of 	the
	memorandum 	on August
	1,
	1978
to 	contact
	state
	attorneys
	by
	mailing 	to
	their
	business
addresses.
Following 	the 	discussions
	with	
SETC
	and	
GOER
	issued
	a
memorandum 	which 	was
	sent
	on 	September
	1978
	to
	employee
organizations 	registered
	with	
GOER,
	including	
STAA. 	The
memorandum	
reads
7

MEMORANDUM
To : 	All Employee Relations Officers
Date: 	September 5, 1978
Subject: 	Employee Organization Use of State
Mail Service
From : 	Governor's Office
Office of Employee Relations
/s/ Allen Paul Goldstein
Allen Paul Goldstein, Deputy Director
The following policy is intended to clarify the
guideline concerning the use of the State mail service
by employee organizations found on page 3 of the
Employer-Employee Relations Guidelines (April 1978) :
"The State mail service should not be utilized
for the distribution of employee organization
mail unless there is no other method of
distributing material."
"State mail service" refers to the internal
distribution and handling of mail by employees of
state agencies and departments. This includes the
handling of mail which enters the system via the
Federal Postal Service.
Departments are encouraged to establish
reasonable procedures for the distribution of
mass or volume mailings or other distributions
which arrive at a work site via either first
class or bulk rate U.S. mail. Such procedures
may differ from the department's policy
concerning distribution of individual items of
personal mail.
If a department determines that the sorting,
distribution or handling of volume mailings,
not related to state business, would create an
added expense or impact on the efficiency of
its internal mail delivery, such mail should
be placed in a central location at the work
site for pick up by employees or their
representatives during non-work time.
MEMORANDUM
To:
	All
	Employee
	Relations
	Officers
sorting,
non-work
Date:
	September
	5,
	1978
Subject:
	Employee
	Organization
	Use
	of 	State
Mail
	Service
From:
	Governor's
	Office
Office 	of
	Employee
	Relations
/s/
	Allen 	Paul
	GoldsteinAllen 	Paul
	Goldstein,
	Deputy
	Director
The
	following
	policy
	is
	intended 	to
	clarify
	the
guideline
	concerning 	the
	use
	of 	the
	State
	mail
	service
by
	employee
	organizations
	found
	on 	page	
3	
of
	the
Employer-Employee
	Relations 	Guidelines
	(April 	1978):
"The
	State
	mail
	service
	should
	not
	be
	utilized
for 	the
	distribution
	of
	employee
	organization
mail
	unless 	there
	is
	no
	other
	method
	of
distributing 	material."
"State
	mail
	service"
	refers
	to 	the
	internal
distribution
	and
	handling
	of
	mail
	by
	employees
	of
state
	agencies
	and
	departments. 	This 	includes 	the
handling
	of
	mail
	which
	enters
	the
	system
	via 	the
Federal
	Postal 	Service.
MASS OR VOLUME MAILINGS	
MASS 	OR
VOLUME
	MAILINGS
Departments
	are
	encouraged
	to
	establish
reasonable 	procedures
	for
	the
	distribution 	of
mass
	or
	volume
	mailings 	or
	other
	distributions
which
	arrive
	at
	a 	work
	site
	via
	either
	first
class
	or 	bulk
	rate
	U.S.
	mail.
	Such
	procedures
may
	differ
	from
	the 	department's 	policyconcerning
	distribution 	of	
individual
	items	
of
personal 	mail.
If
	a
	department 	determines 	that 	the
distribution
	or 	handling	
of	
volume
	mailings,not
	related 	to 	state
	business,
	would
	create
	an
added 	expense 	or 	impact 	on 	the
	efficiency	
of
its
	internal
	mail	
delivery,
	such	
mail 	shouldbe	
placed 	in	
a
	central 	location 	at	
the	
work
site	
for 	pick
	up 	by
	employees 	or
	their
representatives 	during 	time.
8

Volume or mass mailings from employee
organizations may be placed in a container
marked "Employee Organization Mail". 	The
container should be placed in a location which
would assure employee access. 	A
representative of the employee organization
may also pick up the mailing and take
responsibility for its delivery to the
individual addressee during non-work time.
(Non-work time means lunch periods, regularly
scheduled rest periods and time before and
after work. )
The employee organization may also use such
pick up containers for material delivered
through sources other than U. S. mail.
Departments should consult with the employee
organization about location of mail containers
and related matters. Alternate procedures
that reflect the problems of particular
departments or work locations and/or
agreements on volume or frequency of such
distributions may be feasible. However, such
procedures and/or arrangements must be
reasonable, equally applied to all employee
organizations and be of no additional cost to
the State.
PERSONAL MAIL
Departments are under no obligation to deliver
any "personal mail" to individual employees.
"Personal mail" is mail which is not related
to the conduct of State business (e.g. ,
employee organization material, personal
letters, business solicitations, or
billings). Federal Postal Regulations (Postal
Service Manual Part 154.41) provide that
delivery of personal mail addressed to a
business, public agency, etc., is complete
when the mail is accepted at the work
address. There is no requirement to insure
further delivery of such mail to the
individual to whom the mail is addressed.
If there are any questions concerning this
policy, please call the Office of Employee
Relations at (916) 445-1574 or ATSS 485-1574.
Volume
	or
	mass
	mailings
	from
	employee
organizations
	may
	be
	placed 	in
	a
	container
marked 	"Employee
	Organization Mail".
	The
container
	should
	be
	placed 	in
	a
	location
	which
would
	assure
	employee
	access.
	A
representative
	of 	the
	employee
	organization
may
	also
	pick
	up
	the 	mailing
	and
	take
responsibility
	for
	its
	delivery
	to 	the
individual
	addressee 	during
	non-work
	time.
(Non-work
	time
	means
	lunch
	periods, 	regularly
scheduled
	rest
	periods
	and
	time
	before
	and
after
	work.)
The
	employee
	organization
	may
	also
	use 	such
pick
	up
	containers
	for
	material 	delivered
through
	sources
	other
	than
	U.S.
	mail.
Departments 	should
	consult
	with 	the
	employee
organization
	about
	location
	of
	mail
	containers
and
	related 	matters. 	Alternate
	procedures
that
	reflect
	the
	problems
	of
	particular
departments 	or
	work
	locations
	and/oragreements
	on
	volume
	or 	frequency
	of
	such
distributions
	may 	be
	feasible.
	However,
	such
procedures 	and/or 	arrangements
	must 	be
reasonable, 	equally 	applied 	to
	all
	employee
organizations
	and
	be
	of
	no
	additional 	cost 	to
the
	State.
PERSONAL MAIL
Departments
	are
	under
	no
	obligation 	to 	deliver
any
	"personal 	mail"
	to 	individual
	employees.
"Personal 	mail"
	is
	mail
	which
	is
	not
	relatedto
	the 	conduct 	of
	State 	business
	(e.g.,
employee
	organization material,
	personal
letters,
	business
	solicitations,
	or
billings}.
	Federal 	Postal 	Regulations 	(PostalService
	Manual
	Part
	154.41)
	provide
	that
delivery 	of 	personal 	mail 	addressed
	to
	a
business, 	public
	agency,
	etc., 	is
	complete
when
	the 	mail
	is
	accepted
	at
	the
	work
address.
	There
	is
	no
	requirement 	to 	insure
further 	delivery 	of
	such 	mail 	to 	the
individual 	to
	whom
	the 	mail
	is
	addressed.
If
	there 	are
	any
	questions 	concerning
	thispolicy, 	please
	call
	the 	Office 	of
	Employee
Relations
	at
	(916) 	445-1574 	or	
ATSS 	485-1574.
9

DISCUSSION
Since September 1978, PERB has adopted administrative
regulations for the administration of SEERA. The Board notes
PERB Rule 41280 which requires inter alia the application of
PERB Rule 32726 which states that the employer must file with
the regional director, and serve on each employee organization
appearing on the ballot, a list of eligible employees and their
home mailing addresses.
At present, a number of state employees have asked GOER not
to release their home addresses to the employee organizations.
GOER has informed the employee organizations that it will not
release these employees' home addresses but will deliver mail
for these employees to their business address. ' GOER argues
that access to these names and addresses make the instant case
moot. 	An issue before the Board becomes moot when the
essential nature of the complaint is lost due to some
superseding conduct of the parties. Amador Valley Joint Union
High School District (10/2/78) PERB Decision No. 74. A simple
These facts do not appear in the record. However, an
administrative agency may take official notice of its records.
Anderson v. Board of Dental Examiners (1915) 27 Cal. App. 336,
338 [149 P. 1006, 1007]; California Administrative Agency
Practice (Cont. Ed. Bar 1970) Hearing Procedures, section 3.34,
p. 167. Such information was filed with PERB in the form of
stipulations which were part of the record. In the Matter of:
Request for Reconsideration and Supplemental Decision and
Order , Unit Determination for the State of California
(3/20/81) - PERB Decision No. 110d-s.
10
DISCUSSION
Since 	September 	1978, 	PERB 	has 	adopted 	administrative
regulations 	for 	the 	administration 	of 	SEERA. 	The 	Board 	notes
PERB 	Rule 	41280 	which 	requires 	inter 	alia 	the 	application 	of
PERB 	Rule 	32726 	which 	states 	that 	the 	employer 	must 	file 	with
the 	regional 	director, 	and 	serve 	on 	each 	employee 	organization
appearing 	on 	the 	ballot, 	a 	list 	of 	eligible 	employees 	and 	their
home 	mailing 	addresses.
At 	present, 	a 	number 	of 	state 	employees 	have 	asked 	GOER 	not
to 	release 	their 	home 	addresses 	to 	the 	employee 	organizations.
GOER 	has 	informed 	the 	employee 	organizations 	that 	it 	will 	not
release 	these 	employees' 	home 	addresses 	but 	will 	deliver 	mail
for 	these 	employees 	to 	their 	business 	address.? 	GOER 	argues
that 	access 	to 	these 	names 	and 	addresses 	make 	the 	instant 	case
moot. 	An 	issue 	before 	the 	Board 	becomes 	moot 	when 	the
essential 	nature 	of 	the 	complaint 	is 	lost 	due 	to 	some
superseding 	conduct 	of 	the 	parties. 	Amador 	Valley 	Joint 	Union
High 	School 	District 	(10/2/78) 	PERB 	Decision 	No. 	74. 	A simple
10
?These 	facts 	do 	not 	appear 	in 	the 	record. 	However, 	an
administrative 	agency 	may 	take 	official 	notice 	of 	its 	records.
Anderson 	v. 	Board 	of 	Dental 	Examiners 	(1915) 	27 	Cal.App. 	336,
338 	[149 	P. 	1006, 	1007]; 	California Administrative 	Agency
Practice 	(Cont. 	Ed. 	Bar 	1970) 	Hearing 	Procedures, 	section 	3.34,
p. 	167. 	S 	information 	was 	filed 	with 	PERB 	in 	the 	form 	of
stipulations 	which 	were 	part 	of 	the 	record. 	In 	the 	Matter 	of:
Request 	for 	Reconsideration 	and 	Supplemental 	Decision 	and
Order, 	Unit 	Determination 	for 	the 	State 	of 	California
(3/20/81) 	PERB 	Decision 	No. 	ll0d-S.

cessation of the illegal conduct does not necessarily terminate
the underlying controversy. The party asserting the mootness
argument must also demonstrate that there is no reasonable
expectation that the wrongful conduct will be repeated. 8
In the instant matter, the Board has no evidence that GOER
is incapable in the future of refusing to deliver mail which
was sent to these employees' business addresses. In addition,
the public's interest is served when cases which clarify the
parties' rights and obligations under a new law, such as SEERA,
are decided based on the underlying issues. Ac ordingly, we
find the instant matter not to be moot.
The primary question raised by this case is whether denial
of use of the state's internal mail system violates
sections 3519 (a) , (b) , and (d) 	by unlawfully limiting
charging party's access to state employees.
The parameters of the right of access under SEERA were
closely examined by PERB in State of California (California
Cal. App. 2d 32.
United States v. W.T. Grant Co. (1953) 345 U.S. 629.
10section 3519 provides in pertinent part:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
11
cessation
	of
	the
	illegal
	conduct
	does
	not
	necessarily
	terminate
the
	underlying
	controversy.
	The
	party
	asserting
	the
	mootness
argument
	must
	also
	demonstrate
	that
	there
	is
	no
	reasonable
expectation
	that
	the
	wrongful 	conduct
	will
	be
	repeated.a
In
	the
	instant
	matter,
	the
	Board
	has
	no
	evidence
	that
	GOER
is
	incapable 	in 	the 	future 	of 	refusing
	to
	deliver
	mail
	which
was
	sent 	to 	these
	employees'
	business 	addresses.
	In
	addition,
the
	public's 	interest
	is
	served
	when
	cases
	which
	clarify
	the
parties'
	rights
	and
	obligations
	under
	a 	new
	law,
	such
	as
	SEERA,
are
	decided
	based
	on
	the 	underlying
	issues.c
9	
Accordingly,
	we
find
	the
	instant
	matter 	not
	to
	be 	moot.
The
	primary
	question 	raised
	by
	this
	case
	is
	whether
	denial
of
	use
	of 	the
	state's
	internal
	mail 	system
	violates
sections
	3519(a), 	(b),
	and
	(d)10	
lO	
by
	unlawfully
	limiting
charging
	party's
	access 	to
	state
	employees.
The
	parameters
	of 	the
	right
	of 	access
	under
	SEERA
	were
closely
	examined 	by 	PERB
	in
	State 	of 	California 	(California
8	8pittenger v. Home Savings & Loan Association (1958) 166
Cal.App.2d 	32.
pittenger	
&
9united
	States
	v.
	W.T.
	Grant
	Co. 	(1953) 	345
	U.S.	
629.
lOsection
	3519	
provides 	in
	pertinent	
part:
It shall be unlawful for the state to:	
to:
v.
	Home
	Savings
	Loan
	Association
	(1958) 	166
It
	shall
	be
	unlawful 	for 	the
	state
(a) 	Impose	
or 	threaten 	to	
impose	
reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
11

Department of Corrections) . 11 In that case, the Board found
that "a right of access is implicit in the purpose and intent
of SEERA. " Id. PERB Decision No. 127-S at p. 5. After
examining rights of access under other statutes administered by
the Board as well as federal case authority, 2 PERB 	oncluded	c2
at page 8 that ". . 	access to public property may be
reasonably regulated under varied circumstances. "
The question of access in the instant case involves the
distribution of union literature through the internal mail
system of the state. Distribution of literature may involve an
intrusion upon the employer's interest in maintaining order and
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
) Dominate or interfere with the
formation or administration of any employee
organization, or contribute financial or
other support to it, or in any way encourage
employees to join any organization in
preference to another.
11 (5/5/80) PERB Decision No. 127-S.
This Board may use federal labor law prece	12
applicable to public sector labor issues. See Fire Fighters
Union v. City of Vallejo (1974) 12 Cal. 3d 611, Sweetwa
High School District (11/23/76) EERB Decision No. 4 (The Public
Employment Relations Board was previously known as the
Educational Employment Relations Board, or EERB) .
12	12
Department 	of 	Corrections).11 	In 	that 	case, 	the 	Board 	found
that 	"a 	right 	of 	access 	is 	implicit 	in 	the 	purpose 	and 	intent
of 	SEERA." 	Id. 	PERB 	Decision 	No. 	127-S 	at 	p. 	5. 	After
examining 	rights 	of 	access 	under 	other 	statutes 	administered 	by
the 	Board 	as 	well 	as 	federal 	case 	authority,1 	PERB 	concluded
at 	page 	8 	that" ..• 	access 	to 	public 	property may 	be
reasonably 	regulated 	under 	varied 	circumstances."
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
The 	question 	of 	access 	in 	the 	instant 	case 	involves 	the
distribution 	of 	union 	literature 	through 	the 	internal 	mail
system 	of 	the 	state. 	Distribution 	of 	literature 	may 	involve 	an
intrusion 	upon 	the 	employer's 	interest 	in 	maintaining 	order 	and
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(d) 	Dominate 	or 	interfere 	with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any 	way 	encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
11(5/5/80) 	PERB 	Decision 	No. 	127-S.
12 	Board 	may 	use 	federal 	labor 	law 	pr dent where
applicable 	to 	public 	sector 	labor 	issues. 	See 	Fire 	F
Union 	v. 	City of 	Vallejo 	(1974) 	Cal.3d ter Union	611, 	=s_w_e_e~t_w_a~t~e-r-u=-nion
High 	School 	District 	(11/23/76) 	EERB 	Decision 	No. 	4 	(The 	Public
Employment 	Relations 	Board 	was 	previously 	known 	as 	the
Educational 	Employment 	Relations 	Board, 	or 	EERB).
This

discipline. Stoddard-Quirk Manufacturing Co. (1962) 138 NLRB
615, 620 [51 LRRM 111]. Limitation of such distribution,
however, intrudes upon the organizational rights of employees.
Id., 138 NLRB 615. The Board is persuaded that a balance of
these conflicting rights and a determination of what is
reasonable regulation of access in this case should be made in
light of the test utilized by the U.S. Supreme Court in NLRB v.
Babcock & Wilcox Co. (1956) 351 U.s. 105 [38 LRRM 2001] . The
Court in that case sought to accommodate the organizational
rights of employees with the property rights of the
3 	. with as little destruction of one as is
consistent with the maintenance of the other. " Id. , 351 U.s.
at p. 112. 	The result was a rule prohibiting nonemployee
distribution of union literature on company property ". . . if
reasonable efforts by the union through other available
channels of communication will enable it to reach the employees
with its message and if the employer's notice or order does not
discriminate against the union by allowing other
distribution. " Id., 351 U.S. at p. 112.
The Board is aware of the substantial differences
between the property interests of the public employer and the
private employer. Although the public employer may not have
property rights as such, it ". 	. may reasonably regulate
access to public property where necessary to assure the safety
of its employees, wards and facilities and the efficient
operation of its official business. " 	(Footnote omitted. )
State of California, (California Department of Corrections)
(575/80) PERB Decision No. 127-S, p. 8.
13
discipline.
	Stoddard-Quirk 	Manufacturing
	Co. 	(1962) 	138
	NLRB
615,
	620 	[51
	LRRM
	111].
	Limitation 	of
	such
	distribution,
however,
	intrudes
	upon
	the
	organizational
	rights
	of
	employees.
Id.,
	138
	NLRB
	615.
	The
	Board
	is
	persuaded
	that
	a
	balance
	of
these
	conflicting 	rights
	and 	a
	determination 	of
	what
	is
reasonable
	regulation
	of 	access 	in
	this
	case
	should
	be 	made
	in
light
	of
	the
	test
	utilized
	by
	the
	U.S.
	Supreme
	Court
	in
	NLRB
	v.
Babcock	
&	
Wilcox
	Co. 	(1956) 	351
	U.S.
	105 	[38
	LRRM
	2001].
	The
Court
	in
	that
	case 	sought
	to
	accommodate
	the
	organizational
rights
	of
	employees
	with
	the 	property
	rights
	of 	the
employer "113
employer"
	...
	with 	as
	little
	destruction 	of
	one
	as
	is
consistent
	with
	the
	maintenance
	of 	the
	other." 	Id.,
	351
	U.S.
at
	p.
	112.
	The
	result
	was 	a
	rule 	prohibiting
	nonernployee
distribution
	of 	union
	literature
	on
	company
	property".
	•
	if
reasonable
	efforts
	by
	the
	union 	through
	other 	available
channels 	of
	communication
	will
	enable
	it
	to
	reach 	the
	employees
with
	its
	message 	and
	if
	the 	employer's 	notice 	or 	order
	does 	not
discriminate 	against
	the 	union
	by
	allowing 	other
distribution." 	Id.,
	351
	U.S. 	at
	p. 	112.
13	13The 	Board
	is
	aware
	of 	the
	substantial 	dif
	encesbetween
	the 	property
	interests
	of 	the 	public
	employer 	and
	the
private
	employer. 	Although 	the 	public
	employer 	may
	not 	have
property 	rights
	as 	such,
	it"
...
	may
	reasonably 	regulateaccess 	to 	public 	property
	where
	necessary 	to 	assure 	the 	saof
	its
	employees, 	wards 	and
	facilities
	and
	the
	efficientoperation 	of
	its 	official
	business.
11
	(Footnote 	omit
	. )
State 	of 	California, 	(California 	Department 	of 	Corrections)(5/5/80)
	PERB
	Decision
	No. 	127-S, 	p. 	8.
13

The Board believes that this test properly balances the
state employer's interests in maintaining efficiency of
operations and the employees' interest in receiving information
from employee organizations. If the employee organization can
demonstrate that the usual channels of communication with the
employees in question are either ineffective or unreasonably
difficult to utilize, the state employer's rule against
delivery of literature through the internal mail system would
have to yield to the extent necessary to permit the employees
to receive the information.
The memorandum issued by Caltrans on August 1, 1978
instructed various supervisory personnel in that agency not to
permit delivery of personal mail to employees. This blanket
ban was qualified by a reminder that the agency was not to act
as a censor but only to return to the post office any mail that
was obviously not related to state business. This policy did
not differ in any meaningful way from the policy in effect
prior to August 1, 1978.
Before such a policy of nondelivery of personal mail rises
to a violation of SEERA, charging party must demonstrate that
the usual channels of communication were either ineffective or
unreasonably difficult to use or that the policy was
discriminatory on its face or as applied. The record is barren
of such proof. The only related testimony was from
John Sullivan, a representative of STAA, who merely asserted
that the U.S. mail is the only efficient method by which the
14
The
	Board
	believes
	that 	this
	test
	properly
	balances 	the
state
	employer's
	interests
	in 	maintaining
	efficiency
	of
operations
	and
	the
	employees'
	interest
	in
	receiving
	information
from
	employee
	organizations.
	If
	the
	employee
	organization
	can
demonstrate
	that
	the
	usual 	channels
	of
	communication
	with
	the
employees
	in
	question 	are
	either 	ineffective
	or 	unreasonably
difficult
	to
	utilize,
	the
	state
	employer's
	rule 	against
delivery 	of
	literature
	through
	the
	internal
	mail
	system
	would
have
	to
	yield
	to 	the
	extent
	necessary
	to
	permit 	the
	employees
to 	receive 	the 	information.
The 	memorandum
	issued
	by
	Caltrans
	on
	August
	1,
	1978
instructed
	various 	supervisory 	personnel 	in
	that
	agency
	not
	to
permit
	delivery 	of 	personal
	mail
	to
	employees.
	This
	blanket
ban 	was
	qualified
	by 	a
	reminder
	that
	the
	agency
	was
	not 	to
	act
as
	a
	censor 	but 	only 	to 	return 	to 	the 	post
	office
	any
	mail
	that
was
	obviously 	not
	related
	to
	state
	business.
	This
	policy 	did
not
	differ
	in
	any
	meaningful
	way 	from
	the 	policy	
in	
effect
prior
	to
	August
	1,
	1978.
Before 	such
	a
	policy 	of 	nondelivery 	of 	personal
	mail
	rises
to
	a	
violation	
of
	SEERA,
	charging
	party
	must
	demonstrate	
that
the 	usual 	channels
	of	
communication 	were
	either 	ineffective
	or
unreasonably
	difficult
	to 	use 	or
	that
	the 	policy
	was
discriminatory
	on
	its
	face 	or 	as 	applied.
	The
	record
	is 	barren
of	
such	
proof.
	The
	only 	related
	testimony
	was 	from
John	
Sullivan,
	a
	representative 	of
	STAA, 	who
	merely
	asserted
that 	the 	U.S. 	mail
	is
	the 	only 	efficient
	method 	by 	which	
the
14

organization could communicate with its membership. There was
no compelling evidence showing that alternative methods of
presenting their message, such as bulletin boards, oral
solicitation or other forms of literature distribution, were
either ineffective or unreasonably difficult for STAA to
utilize, nor was there any demonstration that the memorandum
was discriminatory. The mere announcement by Caltrans through
the memorandum that a policy already in effect would be
enforced in the future does not constitute discriminatory
conduct. Budget Rent A Car Systems, Inc. 237 NLRB 1294 [99
LRRM 1374] 1978. The Board is unable, from such a sparse set
of facts, to find the Caltrans memorandum of August 1, 1978 in
violation of SEERA.
On September 5, 1978, GOER issued its own memorandum to the
employee relations officers of the state. Copies of this
memorandum were also sent shortly thereafter to STAA and other
employee organizations. The subject of this memorandum was
employee organization use of state mail service. Although the
document does contain information concerning the handling of
nonemployee-organization personal mail, the purpose was to
clarify the use of the state mail service by employee
organizations. As such, it reiterates the policy that: "The
State mail service should not be utilized for the distribution
of employee organization mail unless there is no other method
of distributing material. " The memorandum does not require the
15
organization
	could
	communicate
	with
	its
	membership. 	There
	was
no
	compelling 	evidence
	showing
	that 	alternative
	methods
	of
presenting
	their
	message, 	such
	as
	bulletin
	boards,
	oral
solicitation
	or
	other
	forms
	of
	literature
	distribution,
	were
either
	ineffective
	or 	unreasonably
	difficult
	for
	STAA
	to
utilize,
	nor
	was
	there
	any
	demonstration
	that
	the
	memorandum
was
	discriminatory.
	The 	mere
	announcement
	by
	Caltrans
	through
the
	memorandum
	that
	a
	policy 	already
	in
	effect
	would 	be
enforced
	in 	the
	future
	does
	not
	constitute
	discriminatory
conduct.
	Budget 	Rent
	A
Car
	Systems,
	Inc.
	237
	NLRB
	1294
	[99
LRRM
	1374]
	1978.
	The
	Board
	is
	unable,
	from
	such
	a
	sparse
	set
of
	facts,
	to 	find 	the
	Caltrans
	memorandum
	of
	August
	1,
	1978
	in
violation
	of
	SEERA.
On
	September
	5,
	1978,
	GOER
	issued
	its
	own 	memorandum
	to
	the
employee
	relations 	officers
	of 	the
	state.
	Copies	
of 	this
memorandum
	were
	also 	sent 	shortly 	thereafter
	to
	STAA
	and
	other
employee
	organizations.
	The
	subject 	of
	this
	memorandum 	was
employee
	organization
	use
	of 	~tate
	mail
	service.
	Although
	the
document
	does
	contain 	information 	concerning 	the 	handling
	of
nonemployee-organization 	personal 	mail, 	the 	purpose
	was
	to
clarify	
the 	use
	of 	the
	state
	mail
	service
	by 	employee
organizations.
	As
	such,
	it
	reiterates
	the 	policy 	that:
	"The
State
	mail
	service
	should 	not	
be	
utilized	
for 	the
	distribution
of	
employee	
organization mail 	unless 	there 	is
	no
	other
	method
of 	distributing 	material."
	The 	memorandum does 	not 	require 	the
15

various state agencies and departments to treat personal mail
unrelated to employee organizations in this same way.
The NLRB has found that otherwise valid no-solicitation
rules will violate employees' organizational rights if the
rules are discriminatory either in scope or application. State
Chemical Co. 166 NLRB 455, NLRB v. Olympic Medical Corp. (9th
Cir. 1979) [102 LRRM 2904]. As the GOER memorandum requires
different treatment of employee organization mail than of other
forms of personal mail, it is discriminatory on its face and
impinges on the rights of employees. In determining whether
conduct violates section 3519 (a) , the Board determines per
Carlsbad- whether it slightly harms or is inherently
destructive of employees' rights. Such conduct can be
justified if the employer demonstrates operational necessity or
circumstances beyond the employer's control and inability to
proceed in any other manner respectively. GOER has failed here
to provide even evidence of operational necessity. Even
assuming that the delivery of personal mail would present some
burden to the state's operations, there was no evidence
presented which justifies treating employee organization mail
differently than other personal mail. In fact, testimony
indicated that the bin system initiated by the memorandum was
14 (1/30/79) PERB Decision No. 89. The Board decided to
apply the decision in Carlsbad Unified School District in
determining whether violations of 3519 (a) have occurred in
State of California (California Department of Corrections)
(5/5/80) PERB Decision No. 127-S.
16
various
	state
	agencies
	and
	departments
	to
	treat
	personal
	mail
unrelated 	to
	employee
	organizations 	in
	this
	same 	way.
The
	NLRB
	has
	found
	that
	otherwise
	valid
	no-solicitation
rules 	will 	violate
	employees'
	organizational
	rights
	if
	the
rules 	are 	discriminatory
	either
	in
	scope
	or
	application. 	State
Chemical
	Co. 	166
	NLRB
	455,
	NLRB
	v.
	Olympic
	Medical 	Corp.	
(9th
Cir.
	1979) 	[102
	LRRM
	2904].
	As
	the
	GOER
	memorandum
	requires
different
	treatment 	of
	employee
	organization
	mail 	than
	of 	other
forms
	of 	personal 	mail,
	it
	is
	discriminatory
	on
	its
	face
	and
impinges
	on
	the
	rights
	of
	employees.
	In 	determining
	whether
conduct
	violates
	section
	3519(a), 	the
	Board
	determines 	per
14	
Carlsbad	
whether
	it
	slightly
	harms
	or
	is
	inherently
destructive
	of
	employees'
	rights.
	Such
	conduct 	can
	be
justified
	if
	the
	employer
	demonstrates
	operational 	necessity
	or
circumstances
	beyond
	the 	employer's
	control
	and
	inability
	to
proceed 	in
	any
	other
	manner
	respectively.
	GOER
	has
	failed
	here
to 	provide
	even
	evidence
	of 	operational 	necessity.
	Even
assuming
	that
	the
	delivery 	of 	personal
	mail
	would
	present
	some
burden
	to
	the
	state's
	operations, 	there
	was 	no
	evidence
presented
	whi
	justifies
	treating
	employee
	or
	ization
	mail
differently
	than 	other 	personal 	mail. 	In
	fact,
	testimony
indicated 	that
	the 	bin 	system
	initiated
	by
	the
	memorandum 	was
14
(1/30/79)
	PERB
	Decision
	No. 	89. 	The 	Board 	decided 	toapply 	the 	decision 	in 	Carlsbad 	Unified 	School
	District
	in
determining 	whether
	violations 	of 	3519(a) 	have 	occurred 	in
State 	of 	California 	(California 	Department 	of 	Corrections)
(5/5/80)
	PERB
	Decision 	No. 	127-S.
16

not based on a prior feasibility study and would result in
increased cost to the state. Accordingly, the balance must be
tipped in favor of employees' rights and the GOER memorandum of
September 5, 1978 is a violation of section 3519(a).
Charging party also alleges this memorandum violated
section 3519 (b) as it denied STAA rights guaranteed to it by
SEERA, specifically, the organization's right to communicate
with its members and potential members provided for by
sections 3 	and 3515.5 . 16
153512. PURPOSE OF CHAPTER
It is the purpose of this chapter to promote
full communication between the state and its
employees by providing a reasonable method
of resolving disputes regarding wages,
hours, and other terms and conditions of
employment between the state and public
employee organizations. It is also the
purpose of this chapter to promote the
improvement of personnel management and
employee-employer relations within the State
of California by providing a uniform basis
for recognizing the right of state employees
to join organizations of their own choosing
and be represented by such organizations in
their employment relations with the state.
Nothing in this chapter shall be construed
to contravene the spirit or intent of the
merit principle in state employment, nor to
limit the entitlements of state civil
service employees, including those
designated as managerial and confidential,
provided by Article VII of the California
Constitution or by laws or rules enacted
pursuant thereto.
163515.5. RIGHT OF EMPLOYEE ORGANIZATIONS TO REPRESENT
MEMBERS : 	EXCLUSIVE REPRESENTATION: RESTRICTIONS
17
not
	based
	on
	a
	prior
	feasibility
	study
	and 	would
	result
	in
increased
	cost
	to
	the
	state.
	Accordingly,
	the 	balance
	must
	be
tipped
	in 	favor
	of
	employees'
	rights
	and
	the
	GOER
	memorandum
	of
September
	5,
	1978
	is
	a
	violation
	of
	section
	3519(a).
Charging
	party 	also 	alleges 	this
	memorandum
	violated
section
	3519(b)
	as
	it
	denied
	STAA
	rights
	guaranteed
	to
	it
	by
SEERA,
	specifically,
	the
	organization's 	right
	to
	communicate
with
	its
	members 	and
	potential
	members
	provided 	for
	by
15
sections 51215	3 	16	512 	and
	3515.5.
l53512.
	PURPOSE
	OF
	CHAPTER
It
	is
	the 	purpose 	of
	this
	chapter 	to
	promote
full
	communication 	between
	the
	state
	and
	its
employees
	by
	providing
	a
	reasonable
	method
of 	resolving 	disputes
	regarding
	wages,
hours,
	and
	other
	terms
	and
	conditions 	of
employment
	between
	the
	state
	and
	public
employee
	organizations.
	It
	is 	also
	thepurpose
	of
	this
	chapter 	to
	promote
	the
improvement
	of 	personnel
	management 	and
employee-employer
	relations
	within 	the 	Stateof 	California
	by
	providing
	a
	uniform
	basisfor 	recognizing 	the
	right 	of
	state
	employees
to 	join 	organizations 	of
	their
	own
	choosing
and 	be
	represented
	by
	such
	organizations
	in
their
	employment
	relations
	with 	the
	state.
Nothing
	in
	this
	chapter
	shall
	be
	construed
to 	contravene 	the
	spirit
	or 	intent
	of 	the
merit 	principle
	in
	state
	employment, 	nor
	to
limit
	the
	entitlements
	of
	state 	civil
service
	employees,
	including 	those
designated 	as 	managerial
	and
	confidential,
provided
	by
	Article
	VII
	of
	the 	California
Constitution 	or	
by 	laws	
or 	rules 	enacted
pursuant 	thereto.
16 3515.5.	
RIGHT
	OF EMPLOYEE
	ORGANIZATIONS
	TO
	REPRESENTMEMBERS: 	EXCLUSIVE 	REPRESENTATION: 	RESTRICTIONS
17

As discussed above, this Board has found a right of access
implicit in the purpose and intent of SEERA. This right of
access includes the right of employee organizations to
communicate with employees and their members at the work
facility. State of California (California Department of
Corrections) , supra (5/5/80) PERB Decision No. 127-S at p. 5.
This organizational right of access is subject, however, to
parameters imposed by the Board. In this case, the Board finds
that the GOER memorandum discriminates against employee
organizations and that such is an unlawful limitation of
employee organizations' rights provided by section 3519 (b) .
The hearing officer found that both the August 1, 1978 and
the September 5, 1978 memoranda also violated section 3519 (d)
based on his speculation as to their effect on employee
Employee organizations shall have the right
to represent their members in their
employment relations with the state, except
that once an employee organization is
recognized as the exclusive representative
of an appropriate unit, the recognized
employee organization is the only
organization that may represent that unit in
employment relations with the state.
Employee organizations may establish
reasonable restrictions regarding who may
join and may make reasonable provisions for
the dismissal of individuals from
membership. Nothing in this section shall
prohibit any employee from appearing in his
own behalf in his employment relations with
the state.
18
As
	discussed
	above,
	this
	Board
	has
	found
	a
	right
	of 	access
implicit
	in
	the
	purpose
	and
	intent
	of
	SEERA.
	This
	right
	of
access 	includes
	the
	right
	of
	employee
	organizations
	to
communicate
	with
	employees
	and
	their
	members
	at
	the
	work
facility.
	State
	of
	California 	(California
	Department
	of
Corrections),
	supra 	(5/5/80)
	PERB
	Decision
	No.
	127-S
	at
	p.
	5.
This
	organizational
	right
	of 	access
	is
	subject,
	however,
	to
parameters
	imposed
	by
	the
	Board.
	In
	this
	case,
	the
	Board
	finds
that
	the
	GOER
	memorandum
	discriminates 	against
	employee
organizations
	and
	that
	such
	is
	an
	unlawful
	limitation
	of
employee
	organizations' 	rights
	provided
	by
	section
	3519(b).
The
	hearing
	officer
	found
	that
	both
	the
	August
	1,
	1978 	and
the
	September 	5,
	1978 	memoranda
	also 	violated 	section
	3519(d)
based 	on
	his 	speculation 	as
	to 	their 	effect
	on
	employee
Employee
	organizations
	shall
	have
	the
	right
to 	represent
	their
	members
	in
	their
employment
	relations
	with
	the
	state,
	exceptthat
	once
	an
	employee
	organization
	is
recognized 	as 	the 	exclusive 	representativeof
	an
	appropriate
	unit,
	the 	recognized
employee
	organization
	is
	the 	only
organization 	that
	may
	represent 	that 	unit
	in
employment
	relations
	with
	the
	state.
Employee
	organizations	
may	
establish
reasonable
	restrictions
	regarding	
who may
join
	and	
may	
make
	reasonable 	provisions	
for
the 	dismissal 	of 	individuals
	from
membership. 	Nothing 	in
	this 	section 	shallprohibit	
any 	employee 	from 	appearing 	in 	his
own
	behalf	
in	
his	
employment
	relations	
with
the
	state.
18

organizations. The Board rejects this finding as there is no
evidence that Caltrans, through the August 1, 1978 memorandum,
or GOER, through the September 5, 1978 memorandum, dominated or
interfered with the formation or administration of any employee
organization; nor does the record indicate that the memoranda
encouraged employees to join one organization in preference to
another . 	The Board therefore concludes that STAA did not
support its allegations that Caltrans or GOER violated section
3519 (d) .
The hearing officer also determined that the remedy should
include an award of $300 to STAA for preparation of the
newsletter prototype. This determination was based on the
Finding that there was no alternative use of the newsletter
after issuance of the August 1 memorandum. 	However, the STAA
representative in charge of the newsletter mailing testified
that he had not even explored alternative means of
distribution. It is clear, therefore, that charging party made
no effort to mitigate its loss. The award of $300 under such
circumstances is inappropriate.
Without adopting his rationale, the Board agrees with the
hearing officer's conclusion that an award of attorneys' fees
is inappropriate in this case. The total conduct of GOER in
formulating and issuing the memorandum as well as modifying its
position on access does not justify attorneys' fees. It is
19
organizations.
	The
	Board
	rejects
	this
	finding
	as
	there
	is
	no
evidence
	that
	Caltrans,
	through
	the
	August
	1,
	1978
	memorandum,
or
	GOER,
	through 	the
	September
	5,
	1978
	memorandum,
	dominated
	or
interfered
	with
	the
	formation 	or
	administration 	of
	any
	employee
organization;
	nor
	does 	the
	record
	indicate 	that
	the
	memoranda
encouraged
	employees
	to
	join
	one
	organization 	in 	preference 	to
another.
	The
	Board
	therefore
	concludes
	that
	STAA
	did 	not
support
	its
	allegations 	that
	Caltrans
	or
	GOER
	violated 	section
3519
(d).
The
	hearing
	officer
	also
	determined
	that
	the
	remedy
	should
include
	an
	award
	of
	$300
	to
	STAA
	for
	preparation
	of 	the
newsletter 	prototype.
	This
	determination
	was
	based
	on
	the
finding
	that
	there
	was 	no
	alternative
	use
	of 	the
	newsletter
after
	issuance 	of 	the
	August
	l 	memorandum.
	However,
	the
	STAA
representative
	in 	charge 	of 	the
	newsletter
	mailing
	testified
that
	he
	had
	not
	even
	explored
	alternative
	means
	of
distribution.
	It
	is 	clear,
	therefore, 	that
	charging
	party
	made
no
	effort
	to 	mitigate
	its
	loss.
	The 	award
	of
	$300 	under 	such
circumstances
	is
	inappropriate.
Without 	adopting
	his 	rationale,
	the
	Board
	agrees 	with
	the
hearing	
officer's	
conclusion 	that	
an 	award
	of 	attorneys' 	fees
is
	inappropriate 	in
	this
	case.
	The	
total	
conduct
	of	
GOER	
in
formulating
	and	
issuing 	the
	memorandum
	as 	well 	as 	modifying
	its
position	
on
	access 	does 	not
	justify 	attorneys' 	fees.	
It
	is
19

therefore unnecessary to articulate at this time the
circumstances under which the Board, in some future case, might
find attorneys' fees to be recoverable in an unfair practice
case.
ORDER
Upon the foregoing facts, conclusions of law and the entire
record in this case, it is hereby ORDERED that the State of
California through the Governor's Office of Employee Relations
shall :
1 . 	CEASE AND DESIST FROM:
a. Interfering with the right of employees granted by
section 3515 through its September 5, 1978, memorandum by
discriminatorily denying delivery of employee organization mail
to employees' work sites;
b. Denying employee organizations their rights granted
by section 3515.5 by discriminatorily denying delivery of their
mail to employees' work sites.
2 . 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF SEERA:
a. Withdraw and rescind th 	ber 5, 1978,
memorandum ;
b. Prepare and mail copies of this Decision, Order and
Notice to each individual and organization which received
copies of the Governor's Office of Em 	yee Relations
Memorandum dated September 5, 1978;
20
therefore
	unnecessary
	to
	articulate 	at
	this
	time
	the
circumstances
	under
	which
	the
	Board,
	in
	some
	future 	case,
	might
find
	attorneys'
	fees
	to
	be
	recoverable
	in
	an
	unfair
	practice
case.
ORDER
Upon
	the 	foregoing
	facts,
	conclusions 	of
	law 	and
	the
	entire
record 	in
	this
	case,
	it
	is
	hereby
	ORDERED
	that
	the
	State 	of
California
	through
	the 	Governor's 	Office 	of
	Employee
	Relations
shall:
1.	
CEASE
	AND
	DESIST
	FROM:
a. 	Interfering
	with
	the
	right
	of
	employees
	granted
	by
section
	3515
	through
	its
	September
	5,
	1978,
	memorandum 	by
discriminatorily
	denying
	delivery 	of
	employee
	organization
	mail
to
	employees'
	work
	sites;
b.
	Denying 	employee
	organizations
	their 	rights
	granted
by
	section
	3515.5
	by
	discriminatorily
	denying
	delivery 	of
	their
mail
	to
	employees'
	work
	sites.
2.
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF
	SEERA:
a.
	Withdraw 	and
	resc e Septem
September 	5, 	1978,
memorandum;
b. 	Prepare
	and
	mail 	copies 	of 	this
	Decision,
	Order
	and
Notice 	to
	each
	individual
	and
	organization
	which
	received
copies 	of 	the 	Governor's 	Office plo Employee
	Relations
Memorandum
	dated 	September 	.5, 	1978;
20

c. Post at each state office to which the
September 5,1978, memorandum was sent, immediately upon receipt
thereof, 10 copies of the Notice attached as an appendix
hereto. Such notices shall be placed in locations where
notices to employees are customarily placed and shall be
maintained for a period of 30 consecutive days from the date of
posting. Reasonable steps shall be taken to insure that the
posted notices are not altered, defaced or covered by any other
material.
d. Notify the Sacramento Regional Director of the
Public Employment Relations Board, in writing, within 20 days
of the date of this Decision, of the action it has taken to
comply with this Order.
IT IS FURTHER ORDERED that the charge alleging a violation
of section 3519 (d) related to the issuance of Governor's Office
of Employee Relations memorandum dated September 5, and the
unfair practice charges filed by the State Trial Attorneys
Association based on the issuance of the California Department
of Transportation memorandum dated August 1, 1978, are hereby
DISMISSED .
By:John W. Jaeger , Member 	Havry Gluck, Chairperson
Barbara D. Moore, Member 	Irene Tovar , Member
21
c. 	Post
	at
	each
	state
	office
	to
	which
	the
September
	5,1978,
	memorandum 	was
	sent,
	immediately
	upon
	receipt
thereof,
	10
	copies 	of 	the 	Notice
	attached
	as
	an
	appendix
hereto.
	Such
	notices
	shall
	be
	placed 	in
	locations
	where
notices
	to
	employees
	are
	customarily
	placed
	and
	shall
	be
maintained 	for
	a
	period 	of
	30
	consecutive
	days
	from
	the
	date
	of
posting.
	Reasonable
	steps
	shall
	be
	taken
	to
	insure
	that
	the
posted 	notices
	are 	not
	altered,
	defaced 	or 	covered
	by
	any
	other
material.
d.
	Notify
	the 	Sacramento
	Regional
	Director
	of 	the
Public
	Employment
	Relations
	Board,
	in
	writing, 	within
	20
	days
of 	the 	date 	of
	this
	Decision, 	of 	the
	action
	it
	has
	taken
	to
comply
	with
	this
	Order.
IT
	IS
	FURTHER
	ORDERED
	that
	the 	charge
	alleging
	a
	violation
of
	section
	3519(d)
	related
	to 	the 	issuance 	of 	Governor's
	Office
of
	Employee
	Relations
	memorandum
	dated
	September
	5,
	and
	the
unfair 	practice
	charges
	filed
	by
	the
	State 	Trial
	Attorneys
Association
	based
	on
	the 	issuance 	of 	the
	California
	Department
of 	Transportation
	memorandum
	dated
	August
	1,
	1978,
	are 	hereby
DISMISSED.
By:'-......,{John
	W.
	Jaeger,
0
Melmber	
Hafr'f"~Jc~", 	Chairpers&;,
Barbara
	D. 	Moore, 	Member
21
I	
,~,
Irene'Tovar,
	Member

APPENDIX: 	Notice
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD,
An Agency of the State of California
On September 5, 1978 the Governor's Office of Employee
Relations (GOER) issued a memorandum to all employee relations
officers on the subject of Employee Organization Use of State
Mail Service. This memorandum was subsequently sent to all
employee organizations registered with GOER. 	On
October 10, 1978 the State Trial Attorneys Association, an
employee organization, amended a previously filed unfair
practice charge to include allegations that this memorandum
violated the State Employer-Employee Relations Act (SEERA) . 	A
formal hearing on these allegations, in which all parties had
the right to participate, was conducted by a Public Employment
Relations Board (PERB) hearing officer who issued a proposed
decision which was appealed to the Board. On July 7, 1981,
the Board itself found that the State of California through the
Governor's Office of Employee Relations violated SEERA through
its September 5, 1978 memorandum by interfering with the rights
of employees by discriminatorily denying delivery of employee
organization mail to the employees' work sites. This action
also denied employee organizations their rights granted by
section 3515.5 of SEERA. As a result of this conduct, we have
been ordered to post this notice. 	We will also abide by the
following :
22
APPENDIX:
	Notice
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD,
An
	Agency
	of 	the
	State
	of
	California
On
	September
	5,
	1978
	the 	Governor's
	Office 	of
	Employee
Relations
	(GOER)
	issued
	a 	memorandum
	to
	all
	employee
	relations
officers
	on
	the
	subject 	of
	Employee
	Organization
	Use
	of
	State
Mail
	Service.
	This
	memorandum 	was
	subsequently
	sent 	to
	all
employee
	organizations 	registered
	with
	GOER.
	On
October 	10,
	1978
	the
	State 	Trial
	Attorneys
	Association,
	an
employee
	organization,
	amended 	a
	previously
	filed
	unfair
practice
	charge
	to 	include
	allegations 	that 	this
	memorandum
violated 	the
	State
	Employer-Employee
	Relations
	Act
	(SEERA). 	A
formal
	hearing
	on
	these
	allegations,
in
	which
	all
	parties
	had
the
	right
	to 	participate,was
	conducted
	by 	a
	Public
	Employment
Relations
	Board
	(PERB)
	hearing
	officer
	who
	issued
	a
	proposed
decision
	which
	was
	appealed
	to 	the
	Board.
	On
	July 	7, 	1981,
the
	Board
	itself
	found
	that
	the
	State 	of 	California
	through 	the
Governor's 	Office 	of
	Employee
	Relations 	violated
	SEERA
	through
its
	September 	5,
	1978 	memorandum 	by	
interfering
	with 	the
	rights
of	
employees
	by	
discriminatorily
	denying	
delivery 	of
	employee
organization
	mail
	to 	the 	employees'
	work
	sites.
	This
	action
also
	denied 	employee	
organizations 	their 	rights
	granted	
by
section
	3515.5	
of
	SEERA. 	As 	a
	result 	of 	this	
conduct,	
we
	have
been 	ordered 	to 	post	
this 	notice.
	we
	will 	also 	abide
	by
	the
following: 
22

(a) WE WILL CEASE AND DESIST FROM:
1. Interfering with the right of employees granted by
section 3515 through its September 5, 1978 memorandum by
discriminatorily denying delivery of employee organization mail
to employees' work sites;
2. Denying employee organizations their right granted
by section 3515.5 by discriminatorily denying delivery of their
mail to employees' work sites;
(b) WE WILL withdraw and rescind the September 5, 1978
memorandum, prepare and mail copies of the Public Employment
Relations Board Decision, Order, and this Notice to each
individual and organization which received copies of the GOER
Memorandum dated September 5, 1978.
STATE OF CALIFORNIA
GOVERNOR'S OFFICE OF EMPLOYEE
RELATIONS
(Now functioning as the Department
of Personnel Administration)
Dated :
This is an official notice. It must remain posted for 30
consecutive days from the date of posting and must not be
defaced, altered or covered by any material.
23
(a)
	WE
	WILL CEASE
	AND
	DESIST
	FROM:
1.
	Interfering
	with
	the
	right
	of
	employees
	granted
	by
section
	3515
	through
	its
	September
	5,
	1978 	memorandum 	by
discriminatorily
	denying
	delivery
	of
	employee
	organization
	mail
to
	employees'
	work
	sites;
2. 	Denying 	employee
	organizations
	their 	right
	granted
by
	section
	3515.5
	by
	discriminatorily
	denying
	delivery
	of
	their
mail
	to
	employees'
	work
	sites;
(b)
	WE
	WILL
	withdraw
	and
	rescind
	the
	September
	5,
	1978
memorandum,
	prepare
	and
	mail
	copies 	of
	the
	Public
	Employment
Relations
	Board
	Decision, 	Order,
	and
	this
	Notice
	to
	each
individual
	and
	organization
	which
	received 	copies
	of
	the
	GOER
Memorandum
	dated
	September 	5, 	1978.
STATE
	OF
	CALIFORNIAGOVERNOR'S
	OFFICE
	OF EMPLOYEE
RELATIONS
(Now
	functioning
	as 	the
	Department
of 	Personnel 	Administration)
By :
Director
By:
----------------
Director
Dated:
This
	is
	an
	official
	notice.
	It
	must 	remain
	posted 	for
	30
consecutive 	days
	from
	the 	date 	of 	posting
	and 	must
	not
	be
defaced, 	altered
	or 	covered
	by 	any
	material.
23

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE TRIAL ATTORNEYS ASSOCIATION,
Unfair Practice
Charging Party, 	Case No. S-CE-2-S
v . 	PROPOSED DECISION
(2/22/80)
STATE OF CALIFORNIA, CALIFORNIA
DEPARTMENT OF TRANSPORTATION,
Respondent.
Appearances: Elias Bardis, Attorney for State Trial Attorneys
Association in association with John L. Sullivan, Esq. ; Barbara
Stuart, Esq. , State of California, Governor's Office of
Employee Relations and California Department of Transportation.
Before Stephen H. Naiman, Hearing Officer.
STATEMENT OF THE CASE
The unfair practice charge in this matter was filed on
August 9, 1978, alleging violation of section 3519 (d) of the
State Employer Employee Relations Act, 1 (hereafter SEERA or
Act) . The charge alleges that the California Department of
Transportation (hereafter Caltrans) and the State of California
represented by the Governor's Office of Employee
he State Employer Employee Relations Act is found at
Government Code section 3512, et seq. Hereafter, all
references will be to the Government Code unless otherwise
indicated.
STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
STATE
	TRIAL
	ATTORNEYS
	ASSOCIATION,
Charging
	Party,
v.
STATE	
OF	
CALIFORNIA, 	CALIFORNIA
DEPARTMENT OF
	TRANSPORTATION,
Respondent.
)
)
)
)
)
)
)
)
)
)
____________________
)
Unfair
	Practice
Case
	No.
	S-CE-2-S
PROPOSED
	DECISION
(2/22/80)
9,
The
Appearances:	
Elias 	Bardis,
	Attorney 	for
	State
	Trial
	Attorneys
Assoc1at1on
	in
	association
	with
	John
	L.
	Sullivan,
	Esq.; 	Barbara
Stuart,
	Esq.,
	State
	of
	California,
	Governor's
	Office 	of
Employee
	Relations
	and
	California
	Department
	of 	Transportation.
Before 	Stephen
	H.
	Naiman,
	Hearing
	Officer.
I.
I.	
STATEMENT OF THE CASE
The
	unfair 	practice
	charge 	in
	this
	matter
	was
	filed
	on
August 	1978,
	alleging 	violation
	of
	section
	3519(d)
	of 	the
State
	Employer 	Employee
	Relations
	Act,l 	(hereafter
	SEERA
	or
Act).
	The
	charge
	alleges 	that
	the
	California
	Department
	of
Transportation 	(hereafter 	Caltrans)
	and
	the
	State
	of
	California
represented
	by
	the 	Governor's 	Office 	of
	Employee
T	1	
State
	Employer 	Employee
	Relations
	Act
	is
	found
Government 	Code
	section
	3512,
	et
	seq. 	Hereafter,
	a
references 	will
	be
	to 	the
	Government 	Code
	unless 	otherwise
indicated.

Relations (hereafter State or GOER) violated certain sections
of the Government Code, State Constitution, federal
Constitution and federal law by issuing a memorandum on
August 1, 1978 which stated that employee organization mail
would not be distributed to employees but, rather, returned to
the sender.
On or about September 6, 1978, the Governor's Office of
Employee Relations filed an answer and affirmative defense
which admitted the issuance of the memorandum and the policy
against the delivery of certain personal mail to individual
employees. Further, the answer admitted that "where it is
obvious that mail from employee organizations is not related to
State business, such mail is deemed to be personal mail, and
Caltrans does not deliver such mail to individual Caltrans
employees." 	The answer denied any violation of State and
federal constitutions and statutes.
An informal conference was scheduled for September 8, 1978
and a second informal conference scheduled for September 20,
1978 in Sacramento, California.
On October 10 	78, the charge was amended to add
additional allegations of misconduct centering around the
issuance of a memorandum from the Governor's Office of Employee
Relations dated September 5, 1 	8 and distributed to certain
The memorandum	employee organizations on September 27, 1978.
set forth a policy indicating that State mail service should
2
Relations
	(hereafter 	State
	or
	GOER)
	violated
	certain
	sections
of
	the
	Government 	Code,
	State 	Constitution, 	federal
Constitution
	and
	federal
	law 	by
	issuing
	a 	memorandum 	on
August
	1,
	1978
	which
	stated 	that
	employee
	organization
	mail
would
	not
	be
	distributed
	to
	employees
	but,
	rather,
	returned 	to
the 	sender.
8, 
20,
10
,
On
	or 	about
	September
	6,
	1978,
	the
	Governor's
	Office
	of
Employee
	Relations
	filed
	an
	answer
	and
	affirmative
	defense
which
	admitted 	the 	issuance 	of 	the
	memorandum
	and
	the
	policy
against
	the
	delivery 	of
	certain
	personal
	mail
	to 	individual
employees.
	Further,
	the
	answer
	admitted
	that
	"where
	it
	is
obvious
	that
	mail
	from 	employee
	organizations
	is
	not
	related
	to
State
	business,
	such
	mail
	is
	deemed
	to
	be
	personal 	mail,
	and
Caltrans
	does
	not
	deliver
	such
	mail
	to 	individual 	Caltrans
employees."
	The
	answer
	denied
	any
	violation
	of
	State
	and
federal 	constitutions
	and
	statutes.
An
	informal 	conference
	was
	scheduled 	for
	September
	1978
and 	a
	second
	informal 	conference 	scheduled 	for
	September
1978
	in
	Sacramento,
	California.
On
	October 	, 19
, 	1978,
	the 	charge
	was 	amended
	to
	add
additional 	allegations 	of
	misconduct
	centering
	around
	the
issuance 	of
	a 	memorandum 	from
	the 	Governor's 	Office 	of
	Employee
Relations 	dated 	September 97	
5
	1978 	and
	distributed 	to
	certain
employee
	organizations
	on 	September 	27, 	1978. 	The 	memorandum
set 	forth
	a
	policy 	indicating 	that 	State 	mail 	service 	should
2

not be utilized to distribute employee organizational mail.
Further, the memorandum authorized departments to develop
alternatives to distribution of employee mail based upon their
individual needs.
On or about November 30, 1978, the Governor's Office of
Employee Relations filed an amended answer to the charge which
admitted that two memoranda were issued on August 1, 1978 and
September 5, 1978 and denied the remaining allegations of the
amended charge.
A formal hearing took place on November 16, 17, 20, 21, 27
and 28, 1978. At that formal hearing, the charge was amended
on the record to allege violations of section 3519 (a) and (b)
as well as violations of section 3519 (d) . The amendment was
received without objection and it is deemed to be denied.
The parties were permitted to file simultaneous opening
briefs and reply briefs, the last of which was filed on or
about May 7, 1979. Thereafter, by letter dated August 14,
1979, counsel for charging party directed attention of the
Hearing Officer to the Public Employment Relations Board's
(hereafter PERB or Board) decision in Richmond Federation of
Teachers v. Richmond Unified School District and Simi Educators
Association, CTA/NEA v. Simi Valley Unified School District
(8/1/79) PERB Decision No. 99.
3
not 	be 	utilized 	to 	distribute 	employee 	organizational 	mail,
Further, 	the 	memorandum 	authorized 	departments 	to 	develop
alternatives 	to 	distribution 	of 	employee 	mail 	based 	upon 	their
individual 	needs.
On 	or 	about 	November 	30, 	1978, 	the 	Governor's 	Office 	of
Employee 	Relations 	filed 	an 	amended 	answer 	to 	the 	charge 	which
admitted 	that 	two 	memoranda 	were 	issued 	on August 	1, 	1978 	and
September 	5, 	1978 	and 	denied 	the 	remaining 	allegations 	of 	the
amended 	charge.
A formal 	hearing 	took 	place 	on 	November 	16, 	17, 	20, 	21, 	27
and 	28, 	1978. 	At 	that 	formal 	hearing, 	the 	charge 	was 	amended
on 	the 	record 	to 	allege 	violations 	of 	section 	3519(a) 	and 	(b)
as 	well 	as 	violations 	of 	section 	3519(d). 	The 	amendment 	was
received 	without 	objection 	and 	it 	is 	deemed 	to 	be 	denied.
The 	parties 	were 	permitted 	to 	file 	simultaneous 	opening
briefs 	and 	reply 	briefs, 	the 	last 	of 	which 	was 	filed 	on 	or
about 	May 	7, 	1979. 	Thereafter, 	by 	letter 	dated 	August 	14,
1979, 	counsel 	for 	charging 	party 	directed 	attention 	of 	the
Hearing 	Officer 	to 	the 	Public 	Employment 	Relations 	Board's
(hereafter 	PERB 	or 	Board) 	decision 	in 	Richmond 	Federation 	of
Teachers 	v. 	Richmond 	Unified 	School 	District 	and 	Simi 	Educators
Association, 	CTA/NEA 	v. 	Simi 	Valley 	Unified 	School 	District
(8/1/79) 	PERB 	Decision 	No. 	99.
3

II. 	FINDINGS OF FACT
A. Statutory Setting
The facts of this case substantially occur during the
incipient stages of the State Employer-Employee Relations Act
which became effective July 1, 1978.2 By its terms, SEERA is
designed to promote communication between the State and its
employees. SEERA provides a mechanism for employee
representation by organizations of their own choosing and
provides the means for resolving disputes regarding certain
matters affecting the employment of State employees. 3
2prior to the effective date of SEERA, employer-employee
relations between the State and its employees were governed,
inter alia, by the George Brown Act, Government Code sections
3525 through 3536; California State Personnel Board Rules
543-545; Executive Order 71-3 and Executive Order B-7-75, of
which the hearing officer takes judicial notice.
specifically, SEERA's purposes are set forth at
Government Code section 3512 as follows:
It is the purpose of this chapter to promote
full communication between the state and its
employees by providing a reasonable method
of resolving disputes regarding wages,
hours, and other terms and conditions of
employment between the state and public
employee organizations. It is also the
purpose of this chapter to promote the
improvement of personnel management and
employee-employer relations within the State
of California by providing a uniform basis
for recognizing the right of state employees
to join organizations of their own choosing
and be represented by such organizations in
their employment relations with the
state. .
II. 	FINDINGS 	OF 	FACT
4
A. 	Statutory 	Setting
The 	facts 	of 	this 	case 	substantially 	occur 	during 	the
incipient 	stages 	of 	the 	State 	Employer-Employee 	Relations 	Act
which 	became 	effective 	July 	1, 	1978. 2 	By 	its 	terms, 	SEERA 	is
designed 	to 	promote 	communication 	between 	the 	State 	and 	its
employees. 	SEERA provides 	a 	mechanism 	for 	employee
representation 	by 	organizations 	of 	their 	own 	choosing 	and
provides 	the 	means 	for 	resolving 	disputes 	regarding 	certain
matters 	affecting 	the 	employment 	of 	State 	employees.3
2prior 	to 	the 	effective 	date 	of 	SEERA, 	employer-employee
relations 	between 	the 	State 	and 	its 	employees 	were 	governedr
inter 	alia, 	by 	the 	George Brown Act, 	Government 	Code 	sections
3525 	tliro-ugh 	3536; 	California 	State 	Personnel 	Board 	Rules
543-545; 	Executive 	Order 	71-3 	and 	Executive 	Order 	B-7-75, 	of
which 	the 	hearing 	officer 	takes 	judicial 	notice.
3
be
3specifically, 	SEERA 1 s 	purposes 	are 	set 	forth 	at
Government 	Code 	section 	3512 	as 	follows:
It 	is 	the 	purpose 	of 	this 	chapter 	to 	promote
full 	communication 	between 	the 	state 	and 	its
employees 	by 	providing 	a 	reasonable 	method
of 	resolving 	disputes 	regarding 	wages,
hours, 	and 	other 	terms 	and 	conditions 	of
employment 	between 	the 	state 	and 	public
employee 	organizations. 	It 	is 	also 	the
purpose 	of 	this 	chapter 	to 	promote 	the
improvement 	of 	personnel 	management 	and
employee-employer 	relations 	within 	the 	State
of 	California 	by 	providing 	a 	uniform basis
for 	recognizing 	the 	right 	of 	state 	employees
to 	join 	organizations 	of 	their 	own 	choosing
and 	represented 	by 	such 	organizations 	in
their 	employment 	relations 	with 	the
state ....

Included within the Act's coverage were almost all 200,000
persons employed by the State of California through its civil
service system. 	The Act provides that the State employees may
select an employee organization to be their exclusive
representative in units found to be appropriate by the Public
Employment Relations Board. 4
After adopting Rules and Regulations' pursuant to
section 3520.5 (b) , the Board was faced with the task of
determining appropriate units and providing for election of an
exclusive representative in those units.
Employee organizations seeking to represent State employees
were required to file petitions with PERB on or before
August 31, 1978. The petitions indicated the unit sought to be
represented and were required to be supported by authorizations
4public Employment Relations Board, previously known as
the Educational Employment Relations Board, was charged
initially with overseeing and enforcing the provisions of the
Educational Employment Relations Act found at Government Code
section 3540 et seq. (hereafter EERA) . Pursuant to the
provisions of the legislation enacting SEERA and subsequently,
the Higher Education Employer-Employee Relations Act,
Government Code section 3560 et seq. (hereafter HEERA) , PERB
was charged with enforcing three acts governing these three
areas of public employment relations.
The Rules and Regulations relating to EERA, SEERA and
HEERA are found in the California Administrative Code, title 8,
section 31000 et seq. In implementing SEERA, PERB specifically
adopted sections 41000-41270. Hereafter, PERB's administrative
regulations will be referred to as "PERB Rules and Regulations
section
5
Included
	within 	the
	Act's
	coverage
	were
	almost
	all
	200,000
persons
	employed
	by
	the
	State
	of
	California
	through
	its
	civil
service
	system.
	The
	Act
	provides
	that
	the
	State
	employees
	may
select
	an
	employee
	organization 	to
	be
	their
	exclusive
representative
	in
	units
	found
	to
	be
	appropriate
	by
	the
	Public
Employment
	Relations
	Board.4
After
	adopting
	Rules
	and
	Regulations5 	pursuant
	to
section
	3520.5(b), 	the
	Board
	was
	faced 	with 	the 	task
	of
determining
	appropriate 	units
	and
	providing 	for
	election 	of
	an
exclusive
	representative
	in 	those
	units.
Employee
	organizations
	seeking
	to 	represent 	State
	employees
were
	required 	to
	file
	petitions
	with
	PERB
	on
	or 	before
August 	31, 	1978.
	The
	petitions
	indicated
	the
	unit
	sought
	to
	be
represented
	and 	were
	required 	to
	be
	supported
	by
	authorizations
4public	
Employment
	Relations
	Board,
	previously
	known
	as
the 	Educational
	Employment
	Relations
	Board,
	was
	charged
initially
	with 	overseeing
	and
	enforcing 	the 	provisions 	of
	the
Educational
	Employment
	Relations
	Act 	found
	at
	Government 	Code
section
	3540
	et
	seq.
	(hereafter
	EERA).
	Pursuant 	to 	the
provisions 	of 	the
	legislation
	enacting
	SEERA
	and
	subsequently,
the
	Higher 	Education
	Employer-Employee
	Relations
	Act,
Government 	Code
	section
	3560
	et
	seq.
	(hereafter
	HEERA),
	PERB
was
	charged 	with 	enforcing 	three 	acts
	governing 	these 	threeareas 	of 	publ
	employment
	relations.
5The
	Rules
	and
	Regulations
	relating 	to
	EERA, 	SEERA
	and
HEERA
	are
	found
	in 	the 	California Administrative
	Code,
	title
	8,
section
	31000
	et
	seq. 	In 	implementing
	SEERA,
	PERB
	specifically
adop
	sect
	41000-41270.
	Hereafter,
	PERB's
	administrative
regulations 	will
	be
	referred 	to 	as
	11
PERB
	Rules
	and
	Regulations
section
	___
	"
5

for representation of at least 30 percent of the persons in the
unit alleged to be appropriate. Thereafter, the GOER was
permitted time to set forth a position as to what constituted
appropriate units in which to group the employees covered by
SEERA. The Board established a three-phase process in which
to determine appropriate units under SEERA. In phase I, the
procedures for the entire representation hearing were set forth
and any procedural problems were resolved. During phase II,
testimony was presented by approximately 36 labor
organizations, including STAA and the GOER, as to the placement
in appropriate units of the various classifications of
employees in State service. 8
At the conclusion of phase II, 27,000 pages of testimony
had been amassed. On November 7, 1979, PERB issued a decision
which found appropriate 20 statewide units of employees.9
Included within the 20 units was a separate unit of attorneys
6
7
8The cr 	ermining appropriate
units is set forth in section 3521 of the Governm 	de.
In the Matter of Unit Determination for the State of	9
California pursuant to Chapter 1159 of the Statutes of 1977
(State Employer-Employee Relations Act) (11/7/79) PERB Decision
No. 110-S.
6
for
	representation
	of
	at 	least
	30
	percent 	of 	the 	persons 	in 	the
unit
	alleged 	to
	be
	appropriate.6 	Thereafter,
	the
	GOER
	was
permitted
	time
	to
	set
	forth
	a
	position
	as
	to
	what
	constituted
appropriate
	units
	in
	which
	to
	group
	the
	employees
	covered
	by
SEERA. 7 	The
	Board
	established
	a
	three-phase 	process
	in
	which
to
	determine
	appropriate
	units
	under
	SEERA.
	In 	phase
	I,
	the
procedures 	for 	the
	entire
	representation
	hearing
	were
	set
	forth
and 	any
	procedural
	problems
	were
	resolved.
	During
	phase
	II,
testimony
	was
	presented
	by
	approximately
	36
	labor
organizations,
	including
	STAA
	and
	the	
GOER,	
as
	to
	the 	placement
in 	appropriate 	units
	of 	the 	various
	classifications
	of
employees
	in
	State 	service.a
At
	the 	conclusion 	of
	phase
	II,
	27,000 	pages
	of 	testimony
had
	been 	amassed.
	On
	November
	7,
	1979,
	PERB
	issued
	a
	decision
which 	found
	appropriate
	20
	statewide
	units 	of
	employees.9
Included
	within 	the
	20
	units
	was 	a
	separate 	unit
	of
	attorneys
6Rules and Regulations section 40110, section
41010 (b) (3) (A) (B) and (C) .
7Rules and Regulations section 41100.	and
	Regulations 	section
	41100.
6
Rules
	and
	Regulations
	section
	40110,
	section41010 (b)
(3)
(A) (B)
	and
	(C).
Rules
8The
	criteria	iteria which PERB uses in det	which
	PERB
	uses 	determining
	appropriate
units 	is 	set 	forth 	section
	3521ent Co
the
	Government 	Code
9 	the 	Matter 	of 	Unit 	Determination 	for 	the 	State 	ofCalifornia 	pursuant 	to
	Chapter
	1159
	of 	the 	Statutes 	of
	1977
Employer-Employee
	Relations
	Act) 	(11/7/79)
	PERB
	Decis
No.
	110-S.
rn
(State

and hearing officers which would be comprised of approximately
1,900 persons. 1
B. 	Charging Party State Trial Attorneys
Association Develops as an In-House
Union of Attorneys of the Respondent
California Department of Transportation.
In 1972, the 109 or so attorney-State employees of the
California Department of Transportation formed an employee
organization known as "State Trial Attorneys Association."ll
During the seven years of its existence, STAA has been active
in representing its membership in the courts, before the State
Personnel Board, the Governor's Office and the Legislature.
Previously registered as an employee organization pursuant to
State Personnel Board Rules, STAA has had success in obtaining
pay increases and reducing inequities which existed in State
service relating to lawyers employed by Caltrans and other
State agencies.
STAA's activities are determined by union officials in
Sacramento who are assisted by seven directors: two in
Sacramento, two in San Francisco, two in Los Angeles and
Employees of the Public Employment Relations Board and
other agencies were excluded by statute from this unit.
1 	he parties have stipulated that STAA is an "Employee
organization" within the meaning of section 3513 (a) of SEERA
and that the California Department of Transportation (Caltrans)
is a department of the Agency of Business and Transportation of
the State of California and employs "State employees" within
the meaning of section 3513 (c) of SEERA.
7
and
	hearing
	officers
	which 	would 	be
	comprised
	of
	approximately
1,900
	persons.10	0
B.
	Charging
	Party
	State 	Trial
	Attorneys
Association
	Develops
	as
	an
	In-HouseUnion
	of 	Attorneys 	of 	the
	Respondent
California
	Department
	of 	Transportation.
In
	1972,
	the
	109
	or 	so
	attorney-State
	employees
	of 	the
California
	Department
	of 	Transportation
	formed 	an 	employee
organization
	known
	as
	"State
	Trial
	Attorneys
	Association."11
During
	the
	seven
	years 	of
	its
	existence,
	STAA
	has
	been
	active
in 	representing
	its
	membership
	in 	the
	courts,
	before 	the
	State
Personnel
	Board,
	the 	Governor's 	Office
	and
	the
	Legislature.
Previously
	registered
	as
	an 	employee
	organization 	pursuant
	to
State
	Personnel
	Board
	Rules,
	STAA
	has
	had
	success 	in 	obtaining
pay
	increases
	and
	reducing
	inequities
	which
	existed
	in
	State
service
	relating
	to
	lawyers
	employed 	by
	Caltrans
	and
	other
State
	agencies.
STAA's
	activities
	are 	determined
	by
	union
	officials
	in
Sacramento
	who
	are
	assisted
	by
	seven
	directors:
	two
	in
Sacramento,
	two
	in
	San
	Francisco,
	two
	in
	Los
	Angeles
	and
10	lO
parties
	have
	stipulated 	that
	STAA
	is
	an 	"Employee
organization" 	within 	the
	meaning
	of 	section
	3513(a)
	of
	SEERA
and
	that
	the 	California
	Department
	of 	Transportat 	(Caltrans)
is
	department 	of 	the
	Agency
	Business
	and
	Transportation 	ofthe 	State 	California
	and 	employs
	"State
	employees" 	wi
	inthe 	meaning
	of 	section
	3513(c)
	of
	SEERA.
7
Employees
	of 	the 	Public
	Employment
	Relat
	Board 	and
other 	agencies
	were
	excluded
	by
	statute
	from
	this 	unit.
lllT
The
a

one in San Diego. Over the years, STAA has variously advocated
a statewide bargaining unit comprised only of attorneys
employed by the State of California.
Caltrans employs approximately 15,000 persons throughout
the State of California. These employees are divided between
the headquarters office in Sacramento, which employs 2,500
persons, and 11 other district offices which employ 150 to 1450
persons in various locations of Caltrans throughout the
State. 1 	Within the 11 district offices, there are 300
maintenance stations with 30 to 50 employees and field
construction sites with approximately 1,000-1,500 employees.
Caltrans' 109 attorneys are employed in the four legal
offices in Sacramento, San Francisco, Los Angeles or San
Diego. 1
C. 	STAA Unsuccessfully Attempts to Solicit
Authorizations to Represent a Unit
Comprised Solely of State Attorneys.
The Directors of STAA geared up for an organizational
campaign when it became clear that SEERA would become law.
13The number of attorneys in the legal offices is:
Sacramento (50) ; San Francisco (25) , Los Angeles (30) ;
San Diego (4) .
one
	in
	San
	Diego.
	Over
	the
	years,
	STAA
	has
	variously
	advocated
a
	statewide 	bargaining
	unit
	comprised
	only
	of 	attorneys
employed
	by
	the
	State
	of
	California.
Caltrans
	employs
	approximately
	15,000
	persons 	throughout
the
	State
	of
	California.
	These 	employees
	are 	divided
	between
the 	headquarters
	office
	in 	Sacramento,
	which 	employs
	2,500
persons,
	and
	11
	other
	district
	offices
	which 	employ
	150
	to
	1450
persons 	in 	various
	locations 	of 	Caltrans
	throughout 	the
State.	
2
	12	
Within
	the	
11	
district
	offices,
	there
	are
	300
maintenance
	stations
	with
	30
	to
	50
	employees
	and
	field
construction
	sites
	with 	approximately 	1,000-1,500
	employees.
Caltrans'
	109
	attorneys 	are
	employed
	in 	the 	four
	legal
offices
	in
	Sacramento,
	San
	Francisco,
	Los
	Angeles
	or
	San
Diego. 3	
13 
C.
	STAA
	Unsuccessfully
	Attempts
	to
	Solicit
Authorizations 	to
	Represent
	a
	Unit
Comprised
	Solely 	of
	State
	Attorneys.
The
	Directors 	of
	STAA
	geared
	up
	for
	an
	organizational
campaign
	when
	it
	became
	clear 	that
	SEERA
would 	become
	law.
12	1 The location of district offices and number of	The
	location 	of
	district
	offices
	and 	number
	of
employees in each are as follows: Eureka (490); Redding (550) ;	
employees
	in
	each
	are 	as 	follows:
	Eureka
	(490);
	Redding
	(550);
Marysville (1,000) ; San Francisco (2,900) ; Stockton (750) ;	
Marysville 	(1,000);
	San
	Francisco 	{2,900); 	Stockton 	(750);
Bishop (300); San Luis Obispo (480); San Bernardino (870) ; Los	
Bishop 	(300);
	San
	Luis 	Obispo
	(480);
	San
	Bernardino 	(870);
	Los
Angeles (2,800) ; Fresno (600); San Diego (990) .	
Angeles 	(2,800); 	Fresno 	(600);
	San 	Diego 	(990).
2
13The 	number
	of 	attorneys 	in 	the 	legal 	offices 	is:
Sacramento 	(50);
	San
	Francisco 	(25),
	Los 	Ang 	s
	(30);San 	Diego 	(4).
8

Having advocated, as early as 1975, separate units for
State-employed attorneys and hearing officers, STAA began its
campaign to represent the almost 1,650 State attorneys
throughout California. Joining resources with another labor
organization, Association of California State Attorneys
(hereafter ACSA) , the two organizations attempted to put
together a mailing list consisting of almost 2,000 names of
State attorneys and administrative law judges. 14
In March 1978, STAA objected to access policies formulated
by the GOER and set out in its Employer-Employee Relations
Guidelines dated April 1, 1978. STAA insisted that the only
feasible way it could communicate with State attorneys in
locations throughout the State was by mail. Thus, STAA
obtained from the State Controller a computer printout of the
names of State attorneys and sought to obtain their business
address. After meeting with some difficulty determining the
location of various agency departments, STAA turned the list
over to ACSA for completion. ACSA, which had attorneys in most
State departments, was able to complete the list with much
clerical effort. Both organizations found it extremely
difficult to find the business addresses of State employees
The joint list was developed and utilized by both	14
employee organizations, since ACSA sought a unit of both State
attorneys and administrative law judges and STAA was prepared
to request such a unit if it were found to be appropriate.
Having
	advocated, 	as
	early
	as
	1975,
	separate 	units
	for
State-employed
	attorneys
	and
	hearing
	officers,
	STAA
	began
	its
campaign
	to 	represent
	the
	almost 	1,650
	State
	attorneys
throughout
	California.
	Joining 	resources
	with 	another
	labor
organization,
	Association 	of
	California 	State
	Attorneys
(hereafter
	ACSA),
	the
	two
	organizations
	attempted
	to
	put
together
	a
	mailing
	list
	consisting 	of
	almost
	2,000
	names
	of
State
	attorneys
	and
	administrative
	law
	judges.
1 4
In
	March
	1978,
	STAA
	objected 	to
	access
	policies
	formulated
by
	the
	GOER
	and
	set
	out 	in
	i.ts
	Employer-Employee
	Relations
Guidelines 	dated
	April 	1,
	1978.
	STAA
	insisted 	that
	the 	only
feasible
	way
	it
	could
	communicate
	with
	State
	attorneys 	in
locations
	throughout
	the 	State
	was 	by
	mail.
	Thus,
	STAA
obtained
	from
	the
	State 	Controller
	a
	computer
	printout 	of 	the
names
	of
	State 	attorneys
	and
	sought
	to 	obtain
	their
	business
address. 	After
	meeting 	with
	some
	difficulty
	determining
	the
location 	of 	various
	agency
	departments,
	STAA
	turned 	the
	list
over
	to
	ACSA
	for 	completion.
	ACSA,
	which 	had
	attorneys 	in
	most
State
	departments,
	was
	able 	to
	complete
	the
	list
	with
	much
clerical 	effort.
	Both
	organizations
	found
	it
	extremely
difficult
	to 	find 	the 	business 	addresses 	of 	State
	employees
14The
	joint
	list
	was
	developed 	and
	utilized
	by
	bothemployee
	organizations, 	since
	ACSA
	sought
	a
	unit 	of 	both
	Stateattorneys
	and
	administrative
	law 	judges 	and
	STAA
	was
	prepared
to 	request 	such 	a
	unit
	if 	it
	were 	found
	to
	be
	appropriate.
9

since the computer printout only gave the county in which the
employees were employed. Based upon the difficulty in
obtaining business addresses, STAA concluded it would be much
more difficult to obtain home addresses based solely upon an
employee's name and county of employment. 15
ACSA did not readily turn the list over to STAA but took
advantage of its possession to send out three mailings and at
least one authorization card solicitation before giving the
list to STAA in May 1978, some three months after it had been
completed.
In the last days of May 1978, STAA used the list of names
and business addresses of State attorneys and administrative
law judges to mail four pages of organizational materials and
an authorization for representation to 1, 962 persons on the
list. 	This mailing was sent through the United States mails by
bulk mailing permit to employees at their business addresses at
the cost of almost $550, which included copying, labeling,
folding, stuffing, zip-code sorting and postage.
In the same manner, on or about June 5, 1978, STAA sent a
second mailing to 1,950 persons on the STAA-ACSA list at a cost
of $663. This mailing consisted of approximately 17 pages of
15
10
since
	the
	computer
	printout
	only
	gave
	the
	county
	in
	which
	the
employees
	were
	employed. 	Based
	upon
	the
	difficulty
	in
obtaining 	business 	addresses,
	STAA
	concluded
	it
	would 	be
	much
more
	difficult
	to 	obtain
	home
	addresses
	based
	solely
	upon
	an
15	
employee's
	name 	and
	county
	of
	employment.
ACSA
	did 	not
	readily 	turn
	the
	list
	over
	to
	STAA
	but 	took
advantage
	of
	its
	possession 	to
	send
	out
	three
	mailings
	and
	at
least
	one
	authorization
	card
	solicitation
	before 	giving 	the
list
	to
	STAA
	in
	May
	1978,
	some
	three
	months
	after
	it
	had
	been
completed.
In 	the
	last
	days
	of
	May
	1978,
	STAA
	used
	the
	list
	of
	names
and
	business 	addresses 	of 	State 	attorneys
	and
	administrative
law
	judges
	to
	mail 	four 	pages
	of
	organizational 	materials
	and
an
	authorization
	for
	representation 	to 	1,962
	persons
	on
	the
list.
	This 	mailing
	was
	sent
	through
	the 	United
	States
	mails
	by
bulk 	mailing 	permit
	to
	employees
	at 	their
	business 	addresses
	at
the
	cost 	of
	almost 	$550,
	which
	included 	copying,
	labeling,
folding,
	stuffing,
	zip-code
	sorting
	and
	postage.
In 	the
	same
	manner, 	on
	or 	about 	June
	5, 	1978,
	STAA
	sent	
a
second
	mailing 	to 	1,950 	persons
	on
	the
	STAA-ACSA
	list
	at
	a
	cost
of 	$663. 	This 	mailing 	consisted 	of 	approximate
	17
	pages 	of
15The	The State treats home addresses and telephone numbers	
State 	treats
	home
	addresses
	and
	telephone
	numbers
as confidential and will not release this information. See	
as
	confidential
	and 	wi
	not 	release 	this
	information.
	See
footnote 24 and text at pp. 18-19, infra.	
footnote
	24 	and
	text 	at
	pp. 	18-19,
	infra.
10

printed campaign materials plus another authorization card.
From these two mailings of 3,912 envelopes, approximately 200
were not delivered and were returned to STAA at the cost of 25g
per envelope. 16 	e 200 returned envelopes, approximately
100 bore incorrect addresses and only 12 were returned from
Caltrans. 	The record does not establish why the remaining 100
envelopes, ostensibly correctly addressed, were returned. 	Some
were returned because the addressees had moved or died. 17
The first two mailings yielded STAA 278 authorization cards, of
which approximately 100 came from Caltrans attorneys.
In late June and early July, STAA sent out a third mailing
to the approximately 2,000 persons on the mailing list. The
cost of the mailing was $1, 15048 and approximately 100
letters were returned. 	The record is devoid of any evidence
why these letters were returned.
Finally, on July 10, 1978, STAA sent four bulk mailings to
each Caltrans legal office. These mailings contained
16STAA paid to have the envelopes returned so that it
could obtain address corrections and update its mailing list.
charging party saved no envelopes and, thus, one can	17
only speculate why 100 of the envelopes were returned to STAA
and from what departments in State service they were returned.
18Any variations in cost appear to result from the amount
work done by the copy-mailing service. 	In the case of each
of the three mailings, the postage costs were approximately the
same: under $200, including the cost of the permit.
11
printed
	campaign
	materials
	plus
	another
	authorization 	card.
From
	these
	two
	mailings
	of
	3,912
	envelopes, 	approximately
	200
were
	not
	delivered
	and
	were
	returned
	to
	STAA
	at
	the
	cost 	of	
25¢
per
	envelope. Of th	
16	
Of
	the
	200
	returned
	envelopes, 	approximately
100
	bore
	incorrect
	addresses
	and
	only
	12
	were
	returned
	from
Caltrans.
	The
	record
	does
	not
	establish
	why
	the
	remaining
	100
envelopes,
	ostensibly 	correctly
	addressed,
	were
	returned.
	Some
were
	returned
	because
	the 	addressees
	had 	moved
	or 	died.
1 7
The
	first
	two
	mailings 	yielded
	STAA
	278
	authorization 	cards, 	of
which
	approximately
	100 	came 	from
	Caltrans 	attorneys.
In
	late
	June
	and
	early 	July,
	STAA
	sent 	out
	a
	third
	mailing
to
	the
	approximately
	2,000
	persons
	on
	the 	mailing
	list.
	The
cost
	of
	the 	mailing	
18	was
	$1,150	
and
	approximately
	100
letters
	were
	returned.
	The
	record
	is
	devoid
	of
	any
	evidence
why
	these
	letters
	were
	returned.
Finally,
	on
	July 	10,
	1978,
	STAA
	sent
	four 	bulk
	mailings 	to
each
	Caltrans 	legal 	office.
	These
	mailings 	contained
16sTAA
	paid 	to
	have
	the 	envelopes 	returned 	so
	that
	it
could
	obtain 	address
	corrections
	and
	update
	its
	mailing
	list.
17charging
	party
	saved
	no
	envelopes 	and, 	thus,
	one
	canonly 	speculate
	why 	100
	of 	the 	envelopes
	were
	returned 	to	
STAA
and 	from 	what
	departments 	in 	State 	service 	they
	were
	returned.
18Any
	variations 	in 	cost
	appear 	to
	result
	from
	the
	amount
of 	work 	done	
by 	copy-mailing
	service.
	In 	the 	case 	of 	each
of 	the 	three 	mailings, 	the 	postage 	costs
	were 	approx
	ely 	the
same: 	under 	$200, 	including 	the 	cost 	the 	permit.
11

organizational materials for use in solicitation of other
attorneys known to STAA members. 	STAA was thus able to obtain
an additional 25 to 30 authorization cards for a total of
slightly more than 300.
In order to petition for a Statewide unit of attorneys,
STAA would have been required to obtain 495 authorization
cards, or 30 percent of the unit petitioned for. 19 Having
fallen short of the requisite number of cards to petition for a
19
41010. Petitions to Determine An Appropriate Unit.
(a) An employee organization may file a petition to
determine an appropriate unit not later than August 31,
1978.
) An original and three copies of the petition shall
be filed at the Sacramento Regional Office. A copy of
the petition shall be concurrently served upon the
Governor or his designated representative. 	The petition
shall contain the following information:
(1) The name, telephone number and address of the
employee organization filing the petition and the name,
address and telephone number of the agent to be contacted;
(2) 	The date the petition is submitted;
(3 ) 	For each unit petitioned for;
(A) a description of the grouping of proposed
employment classes to be included in the unit including
schematic codes and class codes as defined in "Pay Scales
in California State Civil Service." Each employment class
shall include the geographic or department location if
other than a statewide class is proposed;
(B) 	The approximate number of employees in the
proposed unit;
(C) An accompanying declaration executed by the
authorized agent of the employee organization under penalty
of perjury stating that the employee organization possesses
to the best of its knowledge and belief, as of the date of
filing the petition, proof of support of at least 30 percent
of the state employees in the unit proposed. The proof of
support shall be maintained by petitioner and made available
for inspection during normal working hours by the Board.
organizational 	materials
	for 	use
	in
	solicitation
	of
	other
attorneys
	known
	to
	STAA
members.
	STAA
	was
	thus
	able 	to 	obtain
an
	additional
	25
	to
	30
	authorization
	cards 	for
	a
	total 	of
slightly
	more
	than
	300.
In
	order
	to
	petition
	for
	a
	Statewide
	unit
	of
	attorneys,
STAA
	would
	have 	been
	required
	to 	obtain
	495
	authorization
cards,
	or
	30
	percent
	of
	the
	unit
	petitioned
	for.
19	
Having
fallen
	short
	of
	the
	requisite
	number
	of
	cards
	to
	petition
	for
	a
19 PERB Rules and Regulations provide in relevant part:	PERB
	Rules
	and
	Regulations 	provide
	in 	relevant
	part:
41010
	Petitions
	to
	Determine
	An
	Appropriate
	Unito
(a)
	An
	employee
	organization
	may
	file
	a
	petition
	todetermine
	an
	appropriate
	unit
	not
	later
	than
	August 	31,
19780
0
name,
Serviceo"
Boardo
?
(b)
	An
	original
	and
	three
	copies
	of
	the
	petition 	shall
be
	filed 	at
	the
	Sacramento 	Regional
	Office.
	A
	copy
	of
the
	petition 	shall
	be
	concurrently 	served
	upon
	the
Governor
	or 	his 	designated
	representative.
	The
	petitionshall
	contain 	the 	following 	information:
(1)
	The name,
	telephone
	number
	and
	address
	of 	the
employee
	organization
	filing
	the
	petition
	and
	theaddress
	and
	telephone
	number
	of 	the 	agent 	to
	be
	contacted;
(2)
	The
	date 	the
	petition 	is
	submitted;
(3) 	For 	each
	unit 	petitioned 	for;
(A) 	a
	description 	of 	the 	grouping
	of
	proposed
employment
	classes 	to
	be
	included
	in 	the
	unit 	includingschematic 	codes 	and
	class
	codes 	as 	defined 	in
	"Pay
	Scales
in 	California 	State 	Civil
	Each 	employment
	class
shall
	include 	the 	geographic 	or 	department
	location
	if
other 	than
	a
	statewide 	class 	is
	proposed;
(B) 	The
	approximate
	number
	of
	employees
	in 	theproposed
	unit;
(C) 	An
	accompanying
	declaration 	executed 	by 	the
authorized 	agent 	of 	the 	employee
	organization 	under 	penalty
of 	perjury 	stating 	that 	the 	employee 	organization 	possesses
to 	the 	best 	of 	its
	knowledge 	and
	belief,
	as 	of 	the 	date 	of
filing 	the 	petition, 	proof 	of 	support 	of 	at 	least
	30
	percent
of 	the 	state 	employees 	in 	the 	unit 	proposedo 	The 	proof 	of
support 	shall 	be 	maintained 	by 	petitioner 	and 	made 	available
for 	inspection 	during 	normal 	working 	hours 	by 	the
1

unit of attorneys, STAA filed a petition for a unit of Caltrans
attorneys only. 	By virtue of this petition, STAA participated
in phase II of the SEERA hearings and was able to make all
arguments concerning the appropriateness of a unit of Caltrans
attorneys or any other attorney unit. The 300 authorization
cards will permit STAA to intervene as a participant in the
Statewide Attorney and Hearing Officer unit which PERB has
found to be appropriate and which contains approximately 1,900
persons . 20 	(See In the Matter of: Unit Determination for
the State of California, supra, PERB Decision 110-S, at
pp. 17-21; see also PERB Rules & Regulations section 41210(d).)
supra, at footnote 19.)
19 (--Continued)
(d) A petition to determine an appropriate unit of an
employee organization shall not be considered complete
or properly filed unless the requirements of this section
and sections 41070 and 41080 have been timely met.
(e) A copy of the constitution, articles of incorporation
and the bylaws of the employee organization, if any, shall be
filed with the Sacramento Regional Office. To maintain
standing as an employee organization before the Board, any
amendments to the constitution, articles of incorporation
and the bylaws, if any, shall be filed with the Sacramento
Regional Office within thirty days of the effective date of
the amendment.
When two or more employee organizations are acting as Joint
Petitioners, Joint Election Requesters or Joint Election
Intervenors, this requirement shall include a copy of their
agreement to act as a joint entity, if any, together with a
copy of the constitution, articles of incorporation and the
bylaws, if any, of each participating employee organization.
20PERB Rules and Regulations provide:
41230. Intervention to Appear on Ballot.
(a) Within 30 days following service of notice of a valid
request to conduct an election in any unit determined by
the Board to be appropriate any employee organization,
(Continued--)
13
unit 	of 	attorneys, 	STAA 	filed 	a 	petition 	for 	a 	unit 	of 	Caltrans
attorneys 	only. 	By 	virtue 	of 	this 	petition, 	STAA 	participated
in 	phase 	II 	of 	the 	SEERA 	hearings 	and 	was 	able 	to 	make 	all
arguments 	concerning 	the 	appropriateness 	of 	a 	unit 	of 	Caltrans
attorneys 	or 	any 	other 	attorney 	unit. 	The 	300 	authorization
cards 	will 	permit 	STAA 	to 	intervene 	as 	a 	participant 	in 	the
Statewide 	Attorney 	and 	Hearing 	Officer 	unit 	which 	PERB 	has
found 	to 	be 	appropriate 	and 	which 	contains 	approximately 	1,900
20	persons. 	(See 	In 	the 	Matter 	of: 	Unit 	Determination 	for
the 	State 	of 	California, 	supra, 	PERB 	Decision 	110-S, 	at
pp. 	17-21; 	see 	also 	PERB 	Rules 	& 	Regulations 	section 41210(d) 	)
	0
~~, 	at 	footnote 	19.)
oooooooeeoooeooooooo4!•o~
meta
any,
PERB
412300
13
19 (--Continued)
(d) 	A petition 	to 	determine 	an 	appropriate 	unit 	of 	an
employee 	organization 	shall 	not 	be 	considered 	complete
or 	properly 	filed 	unless 	the 	requirements 	of 	this 	section
and 	sections 	41070 	and 	41080 	have 	been 	timely
(e) 	A copy 	of 	the 	constitution, 	articles 	of 	incorporation
and 	the 	bylaws 	of 	the 	employee 	organization, 	if 	any, 	shall 	be
filed 	with 	the 	Sacramento 	Regional 	Office. 	To 	maintain
standing 	as 	an 	employee 	organization 	before 	the 	Board, 	any
amendments 	to 	the 	constitution, 	articles 	of 	incorporation
and 	the 	bylaws, 	if 	any, 	shall 	be 	filed 	with 	the 	Sacramento
Regional 	Office 	within 	thirty 	days 	of 	the 	effective 	date 	of
the 	amendment.
When 	two 	or 	more 	employee 	organizations 	are 	acting 	as 	Joint
Petitioners, 	Joint 	Election 	Requesters 	or 	Joint 	Election
Intervenors, 	this 	requirement 	shall 	include 	a 	copy 	of 	their
agreement 	to 	act 	as 	a 	joint 	entity, 	if 	together 	with 	a
copy 	of 	the 	constitution, 	articles 	of 	incorporation 	and 	the
bylaws, 	if 	any, 	of 	each 	participating 	employee 	organizationo
20 Rules 	and 	Regulations 	provide:
Intervention 	to 	Appear 	on 	Ballot.
(a) 	Within 	30 	days 	following 	service 	of 	notice 	of 	a 	valid
request 	to 	conduct 	an 	election 	in 	any 	unit 	determined 	by
the 	Board 	to 	be 	appropriate 	any 	employee 	organization,
(Continued--)

During the time which ACSA used the same list as STAA, it
obtained 600 authorizations from employees. 	STAA had no
mailings returned after August 1, 1978 and there is no evidence
in the record of the number of returns on ACSA's mailings, if
any .
D. 	On August 1, 1978, after Receipt of a Large
Mailing from an Employee Organization,
Caltrans Issued a Memo Stating that Personal
Mail in Volume would be Returned to the
Sender.
1 . 	Background and Policies
Sometime prior to August 1, 1978, the State Employees
Trades Council (hereafter SETC) engaged in an organizational
campaign not unlike the one pursued by STAA and ACSA. After
obtaining a list of names of employees in the maintenance and
trades facilities throughout the State from the comptroller,
SETC, with great effort, obtained their business addresses.
The union then mailed, postpaid, approximately 8,500 letters
containing organizing material to all State trades and
maintenance employees at their business address. 	SETC
20	
ZO (--Continued)
whether or not a party to the unit hearing, may file an
original and three copies of an intervention to appear
on the ballot. The intervention shall be filed at the
Sacramento Regional Office on forms provided by the Board.
The intervention shall be accompanied by proof of
support of at least 10 percent of the state employees in
the appropriate unit.
(b) A copy of the intervention, exclusive of the showing
of support, shall be concurrently served on the Governor
or his designated representative.
14
whether
	or 	not
	a
	party 	to 	the
	unit 	hearing,
	may
	file
	an
original
	and
	three 	copies 	of
	an
	intervention 	to 	appear
on
	the
	ballot.
	The
	intervention 	shall
	be
	filed 	at 	the
Sacramento 	Regional 	Office
	on 	forms
	provided
	by
	the 	Board
The
	intervention 	shall
	be 	accompanied 	by
	proof 	of
0
support 	of 	at 	least
	10
	percent 	of 	the
	state
	employees
	inthe 	appropriate 	unito
(b)
	A
copy
	of 	the 	intervention, 	exclusive 	of 	the 	showing
of 	support, 	shall
	be 	concurrently 	served 	on
	the 	Governor
or 	his 	designated 	representativeo
During
	the
	time
	which
	ACSA
	used
	the
	same
	list
	as
	STAA,
	it
obtained
	600
	authorizations
	from
	employees.
	STAA
	had
	no
mailings 	returned
	after
	August
	1,
	1978
	and
	there
	is
	no
	evidence
in 	the 	record 	of 	the
	number
	of 	returns
	on 	ACSA's
	mailings,
	if
any.
D.
	On
	August
	1,
	1978,
	after
	Receipt 	of
	a
	Large
Mailing
	from 	an 	Employee
	Organization,
Caltrans
	Issued
	a
	Memo
	Stating
	that
	Personal
Mail
	1n Volume
	would 	be
	Returned
	to
	theSender.
1.
	Background
	and
	Policies
Sometime
	prior
	to
	August
	1,
	1978, 	the
	State
	Employees
Trades 	Council
	(hereafter
	SETC)
	engaged
	in
	an
	organizational
campaign
	not
	unlike 	the
	one
	pursued
	by
	STAA
	and
	ACSA.
	After
obtaining
	a
	list
	of
	names
	of
	employees
	in 	the
	maintenance
	and
trades
	facilities
	throughout
	the
	State
	from
	the
	comptroller,
SETC,
	with
	great
	effort,
	obtained
	their
	business 	addresses.
The
	union 	then 	mailed,
	postpaid,
	approximately 	8,500
	letters
containing 	organizing 	material 	to
	all
	State 	trades
	and
maintenance 	employees
	at 	their
	business 	address.
	SETC
(--Continued)
14

specifically mailed approximately 3,500 of such letters to
employees in the various districts of Caltrans. When the
mailing of SETC materials to Caltrans was received at the San
Francisco District Office, supervisors there contacted others
in the Caltrans hierarchy for guidance as to the policy for
distribution of these union organizing materials through the
Caltrans mail distribution system.
The matter eventually reached Mr. Gil Hood, who is chief of
the Division of Administrative Services. Hood, who reports to
the Assistant Director for Administration of Legal Affairs of
Caltrans, supervises five subdivisions within the agency.
These are the Offices of Computer Systems; the Office of
Personnel, Affirmative Action and Management Analysis; the
Office of Employee Relations, Safety and Training; and the
Office of Programs and Budgets. The mail operations of
Caltrans are directed by the Office of Business Management.
After having been advised that employee organization material
had been received and having determined that its distribution
would be inappropriate, Hood discussed the problem with
Robert Negri, who is the Chief of Employee Relations Branch,
within the Office of Employee Relations. 21
2 Caltrans Policy and Procedures Manual provides that the
duties of the Chief, Employee Relations Branch are:
IV. RESPONSIBILITIES:
15
specifically
	mailed 	approximately
	3,500
	of
	such
	letters
	to
employees
	in 	the 	various
	districts
	of
	Caltrans.
	When
	the
mailing
	of
	SETC
	materials
	to 	Caltrans
	was
	received
	at
	the
	San
Francisco
	District
	Office, 	supervisors 	there
	contacted
	others
in 	the 	Caltrans 	hierarchy
	for
	guidance 	as
	to
	the
	policy 	for
distribution
	of 	these
	union
	organizing
	materials
	through
	the
Caltrans
	mail
	distribution
	system.
The
	matter
	eventually
	reached
	Mr.
	Gil
	Hood, 	who
	is
	chief
	of
the 	Division 	of 	Administrative 	Services.
	Hood, 	who
	reports
	to
the
	Assistant 	Director
	for 	Administration
	of
	Legal
	Affairs 	of
Caltrans,
	supervises 	five 	subdivisions 	within 	the
	agency.
These
	are 	the 	Offices 	of
	Computer
	Systems;
	the 	Office 	of
Personnel, 	Affirmative
	Action
	and 	Management
	Analysis;
	the
Office 	of
	Employee
	Relations, 	Safety
	and
	Training;
	and
	the
Office 	of
	Programs 	and
	Budgets.
	The
	mail
	operations 	of
Caltrans 	are
	directed
	by
	the 	Office 	of 	Business
	Management.
After
	having 	been
	advised
	that
	employee
	organization 	material
had 	been
	received
	and
	having 	determined
	that
	its
	distribution
would 	be
	inappropriate,
	Hood
	discussed 	the
	problem
	with
Robert 	Negri,
	who
	is
	the 	Chief 	of
	Employee
	Relations 	Branch,
within 	the 	Office 	of
	Employee
	Relations.
21
21	
trans 	icy
	and
	es
	Manual
	provides
	that
	the
duties 	of 	the 	Chief,
	Employee
	Relations
	Branch
	are:
IV. 	RESPONSIBILITIES:
15

Hood testified at the hearing that it was his belief that
there was a longstanding policy in Caltrans against the
delivery of personal mail. Further, Hood testified variously
throughout the record that:
A. It's our policy not to deliver it
[personal mail] unless it will cost us money
to identify what we shouldn't deliver.
We're trying to find the easiest, the
cheapest way to get the job done but
following the principle that it's
inappropriate if we can reasonably avoid it,
delivering personal mail. 	In certain
circumstances, it's just too costly to try
to stop it. But it's still our intent that
personal mail should not be delivered.
(Emphasis added) (Tr. p. 476, lines 3
through 11)
When Hood was advised that he had no real written policy
or practice in existence which would authorize return of either
21 (--Continued)
Chief, Employee Relations Branch (ERB) ,
Division of Administrative Services,
Sacramento:
The Chief, ERB is responsible for
departmentwide coordination and
administration of the following policies and
procedures. This includes: (1) providing
advice and assistance to Caltrans managers
on such working conditions and employee
relations (ER) matters as grievances,
nepotism, employee rights, internal
communication programs, Certificate of
Appreciation program, alcoholism program,
employee organization contacts, workhour
variable scheduling; and (2) maintaining
liaison with employee organizations on
statewide and departmentwide issues. (At
page 2712)
16
Chief, 	Employee 	Relations 	Branch 	(ERB),
Division 	of 	Administrative 	Services,
Sacramento:
Hood 	testified 	at 	the 	hearing 	that 	it 	was 	his 	belief 	that
there 	was 	a 	longstanding 	policy 	in 	Caltrans 	against 	the
delivery 	of 	personal 	mail. 	Further, 	Hood 	testified 	variously
throughout 	the 	record 	that:
A. 	It's 	our 	policy 	not 	to 	deliver 	it
[personal 	mail] 	unless 	it 	will 	cost 	us 	money
to 	identify 	what 	we 	shouldn't 	deliver.
We're 	trying 	to 	find 	the 	easiest, 	the
cheapest 	way 	to 	get 	the 	job 	done 	but
following 	the 	principle 	that 	it's
inappropriate 	if 	we 	can 	reasonably 	avoid 	it,
delivering 	personal 	mail. 	In 	certain
circumstances, 	it's 	just 	too 	costly 	to 	try
to 	stop 	it. 	But 	it's 	still 	our 	intent 	that
personal 	mail 	should 	not 	be 	delivered.
(Emphasis 	added) 	(Tr. 	p. 	4 76, 	lines 	3
through 	11)
(
When 	Hood 	was 	advised 	that 	he 	had 	no 	real 	written 	policy
or 	practice 	in 	existence 	which 	would 	authorize 	return 	of 	either
21(--Continued)
The 	Chief, 	ERB 	is 	responsible 	for
departmentwide 	coordination 	and
administration 	of 	the 	following 	policies 	and
procedures. 	This 	includes: 	1) 	providing
advice 	and 	assistance 	to 	Caltrans 	managers
on 	such 	working 	conditions 	and 	employee
relations 	(ER) 	matters 	as 	grievances,
nepotism, 	employee 	rights, 	internal
communication 	programs, 	Certificate 	of
Appreciation 	program, 	alcoholism program,
employee 	organization 	contacts, 	workhour
variable 	scheduling; 	and 	(2) 	maintaining
liaison 	with 	employee 	organizations 	on
statewide 	and 	departmentwide 	issues. 	(At
page 	2712)
16

mailings from employee organizations and personal mail, he
determined that such a policy should be developed. Negri was
instructed to research and compile a written policy. Negri
drafted the August 1, 1978 memo relying upon the Caltrans
procedure manual entitled: Administration of
Employer-Employee Relations Policies and Procedures No. P75-40
(hereafter P & P 75-40). Specificially, Negri relied upon
Section VII C. 3:
VII. SPECIFIC DEPARTMENT : *
C. 	Use of State-Owned Equipment
* * *
An employee, employee who is an
organizational representative, or employee
organization:
3 . 	Will not be allowed to use the State's
or Caltrans' mail distribution system
for their publications.
In addition to this section, P and P 75-40 also contains
other statements of policy to the effect that it is the
department's policy "to encourage effective employer-employee
relations within . 	. " the department. Further , the manual
states that the policies which provide the basic framework for
employer-employee relations should be "uniformly applied to all
employee organizations, " reciting the employee rights section
of the George Brown Act. 2
22The Act also gives the following rights to employee
organizations :
(Continued--)	
(Continued--)
17
mailings
	from
	employee
	organizations
	and
	personal 	mail,
	he
determined
	that
	such
	a
	policy
	should
	be
	developed. 	Negri
	was
instructed
	to 	research
	and
	compile
	a
	written 	policy.
	Negri
drafted
	the
	August
	1,
	1978
	memo
	relying
	upon
	the
	Caltrans
procedure
	manual
	entitled:
	Administration 	of
Employer-Employee
	Relations
	Policies
	and
	Procedures
	No.
	P75-40
(hereafter
	P 	& P
	75-40).
	Specificially,
	Negri
	relied
	upon
Section
	VII
	C.
	3:
VII.
	SPECIFIC
	DEPARTMENT:
c. 	Use
	of
	State-Owned 	Equipment
An
	employee,
	employee
	who
	is
	an
organizational 	representative,
	or
	employee
organization:
3. 	Will 	not
	be
	allowed
	to
	use
	the
	State's
or
	Caitrans'
	mail
	distribution
	system
for
	their 	publications.
In 	addition 	to
	this 	section,
	P 	and 	P
	75-40
	also 	contains
other 	statements 	of 	policy 	to 	the
	effect 	that
	it
	is
	the
department's 	policy 	"to
	encourage
	effective
	employer-employee
relations
	within
	...	
11	
the 	department.
	Further,
	the
	manual
states 	that
	the
	policies
	which
	provide 	the 	basic
	framework
employer-employee
	relations
	should
	be
	"uniformly 	applied
	to
	a
employee
	organizations," 	reciting
	the
	employee
	rights 	section
of 	the
	George 	Brown
	Act. 2	
22
17
* *
* * *
* * *
22The 	Act 	so 	gives 	the 	following
	rights 	to
	employee
organizations:

Caltrans' policies also provide that employee organizations
and employees may solicit for membership in Caltrans'
facilities outside of normal work hours. The policies deny
employee organizations23 t 	right to obtain
22 (--Continued)
Employees have the right to organize or join
employee organizations for the purpose of
representation on all matters of
Employer-Employee Relations. Employees also
have the right to refuse membership and
represent themselves on an individual
basis. Employees will not be discriminated
against, granted preferential treatment, or
have equitable treatment withheld because of
either membership or nonmembership in an
employee organization (Gov. Code sec. 3527.)
2 	In addition to STAA, there are 17 employee
Employees 	have 	the 	right 	to 	organize 	or 	Join
employee 	organizations 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
Employer-Employee 	Relations. 	Employees 	also
have 	the 	right 	to 	refuse 	membership 	and
represent 	themselves 	on 	an 	individual
basis. 	Employees 	will 	not 	be 	discriminated
against, 	granted 	preferential 	treatment, 	or
have 	equitable 	treatment 	withheld 	because 	of
either 	membership 	or 	nonmembership 	in 	an
employee 	organization 	(Gov. 	Code 	sec. 	3527.)
Caltrans' 	policies 	also 	provide 	that 	employee 	organizations
and 	employees 	may 	solicit 	for 	membership 	in 	Caltrans'
facilities 	outside 	of 	normal 	work 	hours. 	The 	policies 	deny
employee 	organizations23	he 	the 	right 	to 	obtain
233rn 	addition 	to 	STAA, 	there 	are 	17 	employee
organizations 	recognized 	pursuant 	to 	P and 	P 	75-40 	to 	represent
Caltrans 	employees:
1. 	American 	Federation 	of 	State, 	County 	and 	Municipal
Employees 	(AFSCME)
organizations recognized pursuant to P and P 75-40 to represent
Caltrans employees:
1. 	American Federation of State, County and Municipal
Employees (AFSCME)
2
3 .
2. 	California 	Association 	of 	Educators
3. 	California 	Association 	of 	Planners
4. 	California 	League 	of 	Engineering 	and 	Allied 	Technical
Employees 	(CLEATE)
5. 	California 	State 	Drawbridge 	Operators 	Association
6. 	California 	State 	Employee's 	Asian 	American 	Association
7. 	California 	State 	Employees 	Association 	(CSEA
8. 	Clerical 	and 	Allied 	Services 	Employees 	(CASE).
9. 	Professional 	Engineers 	in California 	Government 	(PECG)
10. 	Public 	Employees 	Service 	Association 	(PERA)
11. 	Service 	and 	Supply 	Employees 	Organization
12. 	State 	Assocition ion 	of 	Real 	Property 	Agents 	(SARPA)
13. 	State 	Employees 	Benefit Association, 	Inc.
14. 	State mployee's Tra	Employee's 	Trades 	Council
15. 	State 	Officers 	Supervisors 	Association
16. 	State 	Trial 	Attorneys
17. 	Union of SState 	Employees, 	Local 	411
California Association of Educators
4 California Association of Planners
California League of Engineering and Allied Technical
Employees (CLEATE)
5. 	California State Drawbridge Operators Association
6. 	California State Employee's Asian American Association
7 	California State Employees Association (CSEA
8 	Clerical and Allied Services Employees (CASE) .
9 	Professional Engineers in California Government (PECG)
Public Employees Service Association (PERA)
11 	Service and Supply Employees Organization
State Associa 	of Real Property Agents (SARPA)
13. 	State Employees Benefit Association, Inc.
14. 	State E 	des Council
15. 	State Officers Supervisors Association
State Trial Attorneys
Union 	tate Employees, Local 411
18
22(--Continued)
10.
12.
18
.
.
.
.
.

Caltrans employees' home address and phone numbers as they are
confidential. 24
It is also likely that Negri referred to the guidelines of
the Office of Employee Relations which were promulgated in
April 1978. These guidelines state as follows:
B. 	Access to Work Locations
Distribution *
1. 	With regard to the distribution and
posting of employee organization
material, employee organizations should
be provided with a reasonable
opportunity to communicate with their
members and other State employees.
*
2 	A reasonable alternative should
be provided where work area access is
denied. * *
5 	The State mail service should not be
utilized for distribution of employee
organization mail unless there is no
other method of distributing material.
In addition, California Employer-Employee Relations
Guidelines provide that until SEERA becomes effective, the
George Brown Act governs employer-employee relations for State
employees, 	The guidelines acknowledge the rights of employees
set forth in the Brown Act, supra, footnote 22, and further
provide that employee organizations shall have reasonable
rights of access or where denied reasonable access alternatives
19
Caltrans
	employees'
	home
	address
	and 	phone 	numbers
	as 	they
	are
confidentia1.24
It
	is
	also
	likely 	that
	Negri
	referred
	to
	the
	guidelines 	of
the 	Office 	of
	Employee
	Relations
	which 	were
	promulgated
	in
April
	1978. 	These
	guidelines
	state
	as
	follows:
B.
	Access
	to
	Work
	Locations
* 	* *
Distribution
1.
* * *
With
	regard
	to
	the
	distribution
	and
posting 	of
	employee
	organization
material,
	employee
	organizations
	should
be
	provided 	with
	a
	reasonable
opportunity 	to
	communicate
	with
	their
members 	and
	other 	State
	employees.
2.
*
.
	..
	A
reasonable
	alternative
	should
be
	provided
	where
	work
	area 	access
	is
denied.
5.
*
The
	State
	mail
	service
	should 	not
	be
utilized
	for
	distribution
	of
	employee
organization
	mail 	unless 	there
	is
	no
other
	method
	of
	distributing
	materiR1.
In
	addition, 	California
	Employer-Employee
	Relations
Guidelines 	provide
	that 	until
	SEERA
	becomes
	effective, 	the
George 	Brown 	Act
	governs 	employer-employee
	relations
	for
	State
employees.
	The
	guidelines
	acknowledge
	the
	rights
	of
	employees
set 	forth 	in 	the
	Brown
	Act, 	supra, 	footnote
	22, 	and
	further
provide
	that
	employee
	organizations 	shall
	have
	reasonable
rights 	of 	access 	or
	where
	denied 	reasonable 	access
	alternatives
24see State Personnel Board Rule 544 (f) .	
State 	Personnel 	Board 	Rule
* *
* *
24see 	544(f).
.
.

shall be provided. In this regard, the guidelines provide that
solicitation for membership can take place in the immediate
work area on nonworking time or where work area access is
denied for safety, security or potential disruption of work or
other legitimate reasons, some alternate location on State
premises shall be provided. The guidelines, like Caltrans
policies, deny employee organizations the right to obtain State
employees' home address and phone numbers.
2 . 	The August 1, 1978 Memorandum
On August 1, 1978, Caltrans issued a memorandum to its
supervisory staff with blind carbon copies to various unions
representing Caltrans employees, including STAA. 25
The memo of August 1, 1978 states:
MEMORANDUM 	Date: August 1, 1978
To: 	District Directors of Transportation
Division Chiefs
Assistant Directors
Deputy Directors
From: 	Department of Transportation
Division of Administrative Services
Personal Mail
It has been Caltrans policy to not permit
the distribution of personal mail to
The copy of the memo attached to respondent's	25
September 6 answer shows blind carbon copies to "Goldstein -
OLER, SETC, OSEA, Local 411, PECT, CLEATE, CASE, STA, SARFA,
PESA, Cal. Assoc. of Education, CAP, District and Division
Employee Relations Officers. " The parties stipulated to the
document as evidence of those who were sent copies of the memo.
20
shall
	be
	provided.
	In
	this
	regard,
	the
	guidelines
	provide
	that
solicitation
	for
	membership
	can
	take
	place
	in
	the
	immediate
work
	area
	on 	nonworking
	time
	or
	where
	work
	area
	access
	is
denied 	for
	safety, 	security
	or
	potential
	disruption
	of
	work
	or
other
	legitimate
	reasons,
	some
	alternate
	location
	on
	State
premises
	shall
	be
	provided.
	The
	guidelines,
	like
	Caltrans
policies,
	deny 	employee
	organizations
	the
	right
	to 	obtain 	State
employees'
	home
	address
	and 	phone 	numbers.
2.
	The
	August
	1,
	1978 	Memorandum
On
	August
	1,
	1978,
	Caltrans
	issued
	a 	memorandum
	to
	its
supervisory
	staff
	with
	blind
	carbon
	copies
	to
	various 	unions
representing 	Caltrans
	employees,
	including
	STAA.
25
The
	memo
	of
	August
	lr
	1978
	states:
MEMORANDUM	
Date:
	August
	1,
	1978
To:
	District
	Directors 	of 	TransportationDivision Chiefs
Assistant 	Directors
Deputy
	Directors
From:
	Department
	of 	TransportationDivision 	of Administrative 	Services
Personal
	Mail
It
	has 	been
	Caltrans 	policy 	to 	not 	permit
the
	distribution
	of 	personal 	mail 	to
25
20
The 	copy
	of 	the
	memo
	attached 	to 	respondent's
September 	6 	answer 	shows
	blind 	carbon 	copies 	to 	"Goldstein
	-
OLER, 	SETC, 	OSEA,
	Local 	411, 	PECT, 	CLEATE, 	CASE, 	STA, 	SARFA,
PESA,
	Cal. 	Assoc.
	of 	Education,
	CAP,
	District
	and
	Division
Employee
	Relations 	ficers.
11
	The
	parties 	stipulated 	to 	the
document 	as 	evidence 	of 	those
	who 	were
	sent 	copies 	of 	the
	memo.

individual employees through the State and
Caltrans mail systems.
It has recently come to our attention that
an employee organization has attempted to
distribute, in volume, employee organization
literature to Caltrans employees by
utilizing the U.S. Postal service mails and
Caltrans mailing address with the
expectation that Caltrans would distribute
the mail to designated individual employees.
In the past, when we have been aware of such
volume personal mailings, we have returned
the mail to the sender as undeliverable. It
will be our practice to continue doing this
in the future
The purpose of our policy, which applies
equally to private individuals, businesses
and employee organizations who have not
received an official State business
sanction, is to minimize unnecessary expense
to the State in terms of distribution costs.
We are not censors and are not expected to
review each piece of mail that is received.
However, when it is obvious that we are
receiving mail which is not related to State
business, then we are obligated to return it
to the post office.
Please remind your organization mail receipt
and distribution unit and your managers of
the need to be aware of this policy. If you
have questions about individual cases,
please contact Len Allenbaugh (482-3305) in
Headquarters Business Management.
/s/ G. V. Hood
G. V. Hood, Chief
Division of Administrative Services
21
individual
	employees
	through
	the
	State
	and
Caltrans
	mail 	systems.
It
	has
	recently
	come
	to
	our
	attention 	that
an 	employee
	organization
	has
	attempted
	to
distribute,
	in
	volume, 	employee
	organization
literature
	to 	Caltrans
	employees
	by
utilizing
	the
	U.S.
	Postal 	service
	mails
	and
Caltrans
	mailing 	address 	with
	the
expectation
	that
	Caltrans
	would
	distribute
the
	mail
	to
	designated
	individual
	employees.
In
	the
	past,
	when
	we
	have 	been
	aware
	of
	such
volume
	personal 	mailings,
	we
	have
	returned
the
	mail
	to 	the 	sender 	as
	undeliverable.
	It
will
	be
	our
	practice
	to
	continue
	doing
	this
in
	the
	future.
The
	purpose
	of
	our
	policy,
	which
	appliesequally 	to 	private 	individuals,
	businesses
and 	employee
	organizations
	who
	have
	not
received
	an
	official
	State
	business
sanction,
	is
	to
	m1n1m1ze
	unnecessary
	expense
to
	the
	State
	in
	terms
	of
	distribution 	costs.
We
	are
	not 	censors
	and
	are 	not 	expected
	to
review 	each
	piece 	of
	mail
	that 	is
	received.
However, 	when
	it
	is
	obvious
	that
	we
	are
receiving
	mail
	which
	is
	not
	related
	to
	Statebusiness,
	then
	we
	are 	obligated 	to 	return
	it
to
	the 	post
	office.
Please
	remind 	your
	organization
	mail
	receipt
and
	distribution 	unit
	and
	your 	managers
	of
the
	need
	to
	be 	aware
	of
	this
	policy.
	If
	you
have
	questions
	about
	individual 	cases,
please 	contact
	Len
	Allenbaugh 	(482-3305)
	inHeadquarters 	Business
	Management.
/s/
	G. 	V. 	Hood
G. 	V. 	Hood,
	Chief
Division 	of 	Administrative 	Services
21

E. 	Following the Issuance of the August 1, 1978
Memorandum, Caltrans Returns Approximately
100 SETC Solicitations to the Union and STAA
Ceases Further Solicitation by Mail.
Following the promulgateon of the August 1, 1978
memorandum, the San Francisco District Office of Caltrans
returned approximately 100 mailings bundled together to SETC
indicating that they were nondeliverable. The union
immediately complained to the Governor's Office of Employee
Relations and sought a clarification of the State's policy on
receipt of union solicitation through the mails and subsequent
delivery to employees at their business address.
Discussions ensued between SETC and also officials of STAA
concerning the State's policy on delivery of union
solicitations received through the United States Postal
Service. 	The unions were told by the Governor's Office of
Employee Relations that the State had no obligation to
distribute nonbusiness mail, including union organization mail,
and indeed had the right to return it. The State was prepared
to reach alternatives for the delivery of mail and explored the
possibilities with the associations. The outcome of the
meetings was that the SETC mailing was returned to Negri for
distribution and Negri saw to it that the 100 letters were
distributed to Caltrans employees in San Francisco.
Based upon the issuance of the August 1 memorandum and the
discussions which followed, STAA did not make any further
22
E. 	Following 	the 	Issuance 	of 	the 	August 	1, 	1978
Memorandum, 	Caltrans 	Returns 	Approximately
100 	SETC 	Solicitations 	to 	the 	Union 	and 	STAA
Ceases 	Further 	Solicitation 	by Mail.
Following 	the 	promulgation 	of 	the 	August 	1, 	1978
memorandum, 	the 	San 	Francisco District Office 	of 	Caltrans
returned 	approximately 	100 	mailings 	bundled 	together 	to 	SETC
indicating 	that 	they 	were 	nondeliverable. 	The 	union
immediately 	complained 	to 	the 	Governor's 	Office 	of 	Employee
Relations 	and 	sought 	a 	clarification 	of 	the 	State's 	policy 	on
receipt 	of 	union 	solicitation 	through 	the 	mails 	and 	subsequent
delivery 	to 	employees 	at 	their 	business 	address.
Discussions 	ensued 	between 	SETC 	and 	also 	officials 	of 	STAA
concerning 	the 	State's 	policy 	on 	delivery 	of 	union
solicitations 	received 	through 	the 	United 	States 	Postal
Service. 	The 	unions 	were 	told 	by 	the 	Governor's 	Office 	of
Employee 	Relations 	that 	the 	State 	had 	no 	obligation 	to
distribute 	nonbusiness 	mail, 	including 	union 	organization 	mail,
and 	indeed 	had 	the 	right 	to 	return 	it. 	The 	State 	was 	prepared
to 	reach 	alternatives 	for 	the 	delivery 	of 	mail 	and 	explored 	the
possibilities 	with 	the 	associations. 	The 	outcome 	of 	the
meetings 	was 	that 	the 	SETC 	mailing 	was 	returned 	to 	Negri 	r
distribution 	and 	Negri 	saw 	to 	it 	that 	the 	100 	letters 	were
distributed 	to 	Caltrans 	employees 	in 	San 	Francisco.
Based 	upon 	the 	issuance 	of 	the 	August 	1 	memorandum 	and 	the
discussions 	which 	followed, 	STAA 	did 	not 	make 	any 	further
22

attempts to reach State attorneys by mailing organizational
material to them at their business address. 	The upshot of the
meeting was, as testified by State employee, John Sullivan,
representative of STAA, "My understanding was that it [the
Governor's policy] would be consistent with the Caltrans memo
of August 1 which would prevent the use of State mails. " (Tr.
p. 817, lines 17 and 18)
From August 1 forward, no further mailings were made by
STAA although STAA was prepared to issue another newsletter
sometime in August 1978. The cost of preparing a prototype for
this aborted mailing was $300.
F. 	GOER Issues Memorandum on September 5, 1978
to Clarify Employer-Employee Relations
Guidelines Regarding use of the State Mail
System.
On September 5, 1978, the Governor's Office issued a
memorandum which attempted to clarify the Employer-Employee
Relations Guidelines of April 1978. The record shows that this
memorandum resulted from the events which led up to the
issuance of the August 1, 1978 memorandum of Caltrans and the
subsequent rejection of certain mailings by SETC as well as
meetings with representatives of SETC and STAA. 	The memorandum
stated as follows:
23
attempts
	to
	reach
	State
	attorneys
	by
	mailing
	organizational
material
	to
	them
	at 	their
	business 	address.
	The
	upshot
	of
	the
meeting
	was,
	as
	testified
	by
	State
	employee, 	John
	Sullivan,
representative
	of
	STAA,
	"My
	understanding
	was
	that
	it
	[the
Governor's 	policy]
	would 	be
	consistent
	with
	the
	Caltrans
	memo
of
	August
	1
	which 	would
	prevent 	the
	use
	of
	State
	mails."
	(Tr.
p. 	817,
	lines
	17 	and 	18)
From
August
	1
	forward,
	no
	further
	mailings
	were
	made
	by
STAA
	although
	STAA
	was
	prepared
	to 	issue
	another
	newsletter
sometime
	in
	August 	1978.
	The
	cost 	of 	preparing
	a
	prototype
	for
this
	aborted 	mailing
	was
	$300.
F.
	GOER
	Issues
	Memorandum 	on
	September
	5,
	1978
to.
Clarify
__
!~_p__loyer-Em~loyee
	RelationsGuidelines
	Regarding 	use
	of 	the
	State
	Mail
~ystem.
On
	September
	5,
	1978,
	the 	Governor's 	Office 	issue~
	a
memorandum 	which
	attempted
	to
	clarify
	the
	Employer-Employee
Relations 	Guidelines 	of 	April
	1978.
	The
	record
	shows
	that 	this
memorandum
	resulted
	from
	the 	events
	which
	led
	up
	to 	the
issuance 	of 	the
	August
	1,
	1978 	memorandum
	of 	Caltrans
	and
	the
subsequent
	rejection 	of 	certain
	mailings	
by	
SETC
	as 	well 	as
meetings
	th 	representatives 	of
	and
	STAA. 	The 	memorandum
stated
	as 	follows:
23

MEMORANDUM
To: 	All Employee Relations Officers
Date: 	September 5, 1978
Subject: 	Employee Organization Use of State
Mail Service
From: 	Governor's Office
Office of Employee Relations
/s/ Allen Paul Goldstein
Allen Paul Goldstein, Deputy Director
The following policy is intended to clarify
the guideline concerning the use of the
State mail service by employee organizations
found on page 3 of the Employer-Employee
Relations Guidelines (April 1978) :
"The State mail service should not be
utilized for the distribution of
employee organization mail unless there
is no other method of distributing
material."
"State mail service" refers to the internal
distribution and handling of mail by
employees of state agencies and
departments. This includes the handling of
mail which enters the system via the Federal
Postal Service.
Departments are encouraged to establish
reasonable procedures for the distribution
of mass or volume mailings or other
distributions which arrive at a work site
via either first class or bulk rate U.S.
mail. Such procedures may differ from the
department's policy concerning distribution
of individual items of personal mail.
If a department determines that the sorting,
distribution or handling of volume mailings,
not related to state business, would create
an added expense or impact on the efficiency
of its internal mail delivery, such mail
24
MEMORANDUM
To:
	All
	Employee
	Relations
	Officers
Date:
	September
	5,
	1978
Subject:
	Employee
	Organization
	Use
	of
	State
Mail
	Service
From:
	Governor's
	Office
Office 	of
	Employee
	Relations
/s/
	Allen 	Paul
	GoldsteinAllen 	Paul
	Goldstein,
	Deputy
	Director
The
	following
	policy
	is
	intended
	to
	clarify
the
	guideline
	concerning
	the
	use
	of 	the
State
	mail
	service	
by	
employee
	organizations
found
	on
	page
	3
	of 	the
	Employer-Employee
Relations 	Guidelines 	(April 	1978):
"The
	State
	mail
	service
	should 	not
	be
utilized
	for 	the
	distribution
	of
employee
	organization
	mail
	unless 	there
is
	no
	other
	method
	of
	distributingmaterial."
"State
	mail
	service"
	refers
	to 	the
	internal
distribution
	and
	handling
	of
	mail 	by
employees
	of
	state
	agencies
	and
departments. 	This
	includes 	the 	handling
	of
mail
	which
	enters
	the
	system
	via 	the 	Federal
Postal 	Service.
MASS OR VOLUME MAILINGS	
MASS
	OR VOLUME
	MAILINGS
Departments
	are
	encouraged
	to
	establish
reasonable 	procedures 	for 	the
	distribution
of
	mass
	or
	volume
	mailings 	or 	other
distributions
	which
	arrive 	at
	a 	work
	site
via
	either
	first
	class
	or 	bulk
	rate
	U.S.
mail.
	Such
	procedures
	may
	differ
	from
	the
department's 	policy 	concerning
	distributionof 	individual
	items 	of 	personal 	mail.
If
	a
	department 	determines
	that 	the 	sorting,
distribution
	or 	handling 	of
	volume
	mailings,not
	related 	to 	state 	business,
	would
	create
an 	added 	expense 	or 	impact 	on
	the 	efficiencyof
	its 	internal 	mail 	delivery,
	such 	mail
24

should be placed in a central location at
the work site for pick up by employees or
their representatives during non-work time.
Volume or mass mailings from employee
organizations may be placed in a container
marked "Employee Organization Mail". 	The
container should be placed in a location
which would assure employee access. A
representative of the employee organization
may also pick up the mailing and take
responsibility for its delivery to the
individual addressee during non-work time.
(Non-work time means lunch periods,
regularly scheduled rest periods and time
before and after work.)
The employee organization may also use such
pick up containers for material delivered
through sources other than U.S. mail.
Departments should consult with the employee
organization about location of mail
containers and related matters. Alternate
procedures that reflect the problems of
particular departments or work locations
and/or agreements on volume or frequency of
such distributions may be feasible.
However, such procedures and/or arrangements
must be reasonable, equally applied to all
employee organizations and be of no
additional cost to the State.
PERSONAL MAIL
Departments are under no obligation to
deliver any "personal mail" to individual
employees. 	"Personal mail" is mail which is
not related to the conduct of State business
(e.g. , employee organization material,
personal letters, business solicitations, or
billings) . Federal Postal Regulations
(Postal Service Manual Part 154.41) provide
that delivery of personal mail addressed to
a business, public agency, etc. , is complete
when the mail is accepted at the work
address. There is no requirement to insure
further delivery of such mail to the
individual to whom the mail is addressed.
25
should
	be
	placed
	in
	a
	central
	location
	at
the
	work
	site
	for 	pick
	up 	by
	employees
	or
their
	representatives
	during
	non-work
	time.
Volume
	or
	mass
	mailings
	from 	employee
organizations
	may 	be
	placed 	in
	a
	container
marked 	"Employee
	Organization
	Mail".
	The
container
	should
	be
	placed 	in
	a
	location
which
	would
	assure
	employee
	access.
	A
representative
	of
	the
	employee
	organization
may
	also
	pick
	up
	the
	mailing
	and
	take
responsibility
	for
	its
	delivery 	to
	the
individual
	addressee 	during
	non-work
	time.
(Non-work
	time
	means
	lunch
	periods,
regularly
	scheduled
	rest
	periods
	and
	time
before
	and
	after
	work.)
The
	employee
	organization
	may
	also
	use 	such
pick
	up
	containers 	for
	material 	delivered
through
	sources 	other
	than
	U.S.
	mail.
Departments 	should
	consult
	with 	the
	employee
organization
	about
	location 	of
	mail
containers
	and
	related 	matters. 	Alternate
procedures
	that
	reflect
	the
	problems
	of
particular
	departments 	or
	work
	locations
and/or
	agreements
	on 	volume
	or 	frequency
	of
such
	distributions
	may 	be
	feasible.
However,
	such
	procedures 	and/or 	arrangements
must 	be
	reasonable, 	equally 	applied 	to
	all
employee
	organizations
	and 	be
	of
	no
additional 	cost 	to 	the
	State.
PERSONAL 	MAIL
Departments
	are
	under
	no
	obligation 	to
deliver
	any
	"personal 	mail"
	to 	individual
employees.
	"Personal 	mail"
	is
	mail
	which
	is
not
	related 	to 	the 	conduct
	of 	State 	business
(e.g.,
	employee
	organization 	material,personal
	tters,
	business
	solicitations,
	or
billings).
	Federal 	Postal 	Regulations
(Postal 	Service
	Manual
	Part
	154.41) 	provide
that 	delivery 	of 	personal 	mail 	addressed 	to
a
	business, 	public
	agency,
	etc., 	is
	complete
when
	the 	mail
	is
	accepted
	at
	the
	work
address.
	There
	is
	no
	requirement 	to 	insure
further 	delivery
	such 	mail 	to 	the
individual 	to
	whom
	the 	mail
	is
	addressed.
25

If there are any questions concerning this
policy, please call the Office of Employee
Relations at (916) 445-1574 or ATSS 485-1574.
The purported author of the memorandum, Alan Paul
Goldstein, Deputy Director of GOER, testified as to the purpose
and policies which underlay the memorandum of September 5,
1978. That testimony shows that while the State seemed
concerned about the increased volume mailing that would be
attendant to SEERA organizational activity, state officials
were concerned as well about equal treatment and advantages
that certain employee organizations might have by specific
rights to utilize or initiate communications through the State
mail system itself.
Goldstein testified as follows:
WITNESS: Well, I think probably the best
characterization of that is in the paragraph which
says departments are encouraged to establish
reasonable procedures for the distribution of mass or
volume mailings or other distribution which are at
their work site, via first class or bulk rate U.S.
mail. 	The intent was in establishing those procedures
to be conscious of additional cost to the State, the
delivery of mail which is nonbusiness related, and/or
impact on the efficiency of the mail deliveries. And
the sole purpose here, the major thrust of this policy
relates to the cost of delivery of mail, be if it's
from an employee organization, be it from an
advertiser, be it from anybody else. We went further
in this policy in attempting to be equitable to the
employee organizations and consider the special
circumstances of an organizing time period where
employee organizations were attempting to increase
their communication and made a provision in this that
where there was a cost in delivery that an alternative
method be established, which is not to send the mail
back but to provide for access to the mail that's
delivered at the work site. We're under no obligation
26
If 	there 	are 	any 	questions 	concerning 	this
policy, 	please 	call 	the 	Office 	of 	Employee
Relations 	at 	(916) 	445-1574 	or 	ATSS 	485-1574.
The 	purported 	author 	of 	the 	memorandum, 	Alan 	Paul
Goldstein, 	Deputy 	Director 	of 	GOER, 	testified 	as 	to 	the 	purpose
and 	policies 	which 	underlay 	the 	memorandum of 	September 	5,
1978. 	That 	testimony 	shows 	that 	while 	the 	State 	seemed
concerned 	about 	the 	increased 	volume 	mailing 	that 	would 	be
attendant 	to 	SEERA organizational 	activity, 	state 	officials
were 	concerned 	as 	well 	about 	equal 	treatment 	and 	advantages
that 	certain 	employee 	organizations 	might 	have 	by 	specific
rights 	to 	utilize 	or 	initiate 	communications 	through 	the 	State
mail 	system 	itself.
Goldstein 	testified 	as 	follows:
WITNESS: 	Well, 	I 	think 	probably 	the 	best
characterization 	of 	that 	is 	in 	the 	paragraph 	which
says 	departments 	are 	encouraged 	to 	establish
reasonable 	procedures 	for 	the 	distribution 	of 	mass 	or
volume 	mailings 	or 	other 	distribution 	which 	are 	at
their 	work 	site, 	via 	first 	class 	or 	bulk 	rate 	U.S.
mail. 	The 	intent 	was 	in 	establishing 	those 	procedures
to 	be 	conscious 	of 	additional 	cost 	to 	the 	State, 	the
delivery 	of 	mail 	which 	is 	nonbusiness 	related, 	and/or
impact 	on 	the 	efficiency 	of 	the 	mail 	deliveries. 	And
the 	sole 	purpose 	here, 	the 	major 	thrust 	of 	this 	policy
relates 	to 	the 	cost 	of 	delivery 	of 	mail, 	be 	if 	it's
from 	an 	employee 	organization, 	be 	it 	from 	an
advertiser, 	be 	it 	from 	anybody 	else. 	We 	went 	further
in 	this 	policy 	in 	attempting 	to 	be 	equitable 	to 	the
employee 	organizations 	and 	consider 	the 	special
circumstances 	of 	an 	organizing 	time 	period 	where
employee 	organizations 	were 	attempting 	to 	increase
their 	communication 	and 	made 	a 	provision 	in 	this 	that
where 	there 	was 	a 	cost 	in 	delivery 	that 	an 	alternative
method 	be 	established, 	which 	is 	not 	to 	send 	the 	mail
back 	but 	to 	provide 	for 	access 	to 	the 	mail 	that's
delivered 	at 	the 	work 	site. 	We're 	under 	no 	obligation
26

to do that. In fact, we could send mail back if we
wanted to. The consideration was basically a cost
consideration.
Q . 	(By Ms. Stuart) How does the discretion granted
to the various departments relate to what you just
stated?
A. 	Okay. The discretion to the departments, the
departments, we felt, could best ascertain whether or
not there's a cost at their particular operational
setting. The departments in State service, the
physical set-up of those departments in the field are
different. The Department of Health, a hospital
configuration, is different from a maintenance station
configuration. And so we have to rely on our
operation people to make a determination as to whether
or not an increased volume of mail or a special
delivery of mail would impact their regular service,
cause an additional cost to that department. And the
only people we can rely on are the people at the
operational site to make those kinds of
determinations. That's what this policy says to the
departments, whether it, regarding employee
organization mail or any other mail. If a mail
delivery is made from point A to point B and the
addition of a letter to that carrier or that clerk or
whoever is delivering that mail, provides no
additional cost, it doesn't impact a delivery, we're
not telling the department that they have to do
anything about that. Where a department says to
deliver 500 letters to a special location in a
hospital ground would impact their delivery or cause a
cost, we're saying then you don't have to deliver
that. 	What you do with that mail is you put it in a
place where it's accessable to either the employee or
a representative of an employee organization if that's
the persons, or the body that's mailing it, an attempt
to accommodate, make a special effort to accommodate
employee organizations because of the type of
environment that we were in.
Were the guidelines which are Respondent's
Exhibit B, and the September 5 memo which is Joint
Exhibit 1 developed in relation to the State
Employer-Employee Relations Act which became effective
on July 1, 1978?
27
to 	do 	that. 	In 	fact, 	we 	could 	send 	mail 	back 	if 	we
wanted 	to. 	The 	consideration 	was 	basically 	a 	cost
consideration.
Q. 	(By Ms. 	Stuart} 	How 	does 	the 	discretion 	granted
to 	the 	various 	departments 	relate 	to 	what 	you 	just
stated?
A. 	Okay. 	The 	discretion 	to 	the 	departments, 	the
departments, 	we 	felt, 	could 	best 	ascertain 	whether 	or
not 	there's 	a 	cost 	at 	their 	particular 	operational
setting. 	The 	departments 	in 	State 	service, 	the
physical 	set-up 	of 	those 	departments 	in 	the 	field 	are
different. 	The 	Department 	of 	Health, 	a 	hospital
configuration, 	is 	different 	from 	a 	maintenance 	station
configuration. 	And 	so 	we 	have 	to 	rely 	on 	our
operation 	people 	to 	make 	a 	determination 	as 	to 	whether
or 	not 	an 	increased 	volume 	of 	mail 	or 	a 	special
delivery 	of 	mail 	would 	impact 	their 	regular 	service,
cause 	an 	additional 	cost 	to 	that 	department. 	And 	the
only 	people 	we 	can 	rely 	on 	are 	the 	people 	at 	the
operational 	site 	to 	make 	those 	kinds 	of
determinations. 	That's 	what 	this 	policy 	says 	to 	the
departments, 	whether 	it, 	regarding 	employee
organization 	mail 	or 	any 	other 	mail. 	If 	a 	mail
delivery 	is 	made 	from 	point 	A to 	point 	Band 	the
addition 	of 	a 	letter 	to 	that 	carrier 	or 	that 	clerk 	or
whoever 	is 	delivering 	that 	mail, 	provides 	no
additional 	cost, 	it 	doesn't 	impact 	a 	delivery, 	we're
not 	telling 	the 	department 	that 	they 	have 	to 	do
anything 	about 	that. 	Where 	a 	department 	says 	to
deliver 	500 	letters 	to 	a 	special 	location 	in 	a
hospital 	ground 	would 	impact 	their 	delivery 	or 	cause 	a
cost, 	we're 	saying 	then 	you 	don't 	have 	to 	deliver
that. 	What 	you 	do 	with 	that 	mail 	is 	you 	put 	it 	in 	a
place 	where 	it's 	accessable 	to 	either 	the 	employee 	or
a 	representative 	of 	an 	employee 	organization 	if 	that's
the 	persons, 	or 	the 	body 	that's 	mailing 	it, 	an 	attempt
to 	accommodate, 	make 	a 	special 	effort 	to 	accommodate
employee 	organizations 	because 	of 	the 	type 	of
environment 	that 	we 	were 	in.
Q. 	Were 	the 	guidelines 	which 	are 	Respondent's
Exhibit 	B, 	and 	the 	September 	5 memo 	which 	is 	Joint
Exhibit 	1 	developed 	in 	relation 	to 	the 	State
Employer-Employee 	Relations 	Act 	wh 	became 	effective
on 	July 	1, 	1978?
27

A. 	Yes, they are.
Q. 	What is their relationship to that law?
A. 	Well, I think the principle relationship is the
one that I've already mentioned, that's the spirit of
the law in terms of allowing employees and employee
organizations the opportunity to represent employees
and to communicate with employees. We feel that this
policy in the guidelines, the entire guideline was set
up, be it the issue on mail or access or any of the
other provisions of the guidelines, with that spirit
in mind, an attempt not to impede the ability of an
employee organization to communicate with its members
but to balance that ability with the need for the
State to continue to operate in an efficient manner
and a cost that's appropriate, in terms of not
spending the State funds to organize for the employee
organizations but to go as far as we possibly could to
not impede the employee organization's ability. And
based on commentary from other employee organizations
and we seem to be moved, have moved in that direction.
(Transcript p. 887, line 8, through p. 889, line 18.)
On September 27, 1978, the memorandum dated September 5 was
sent to employee organizations that had registered with the
Governor's Office. The evidence establishes that STAA also
received a copy of the memorandum. Thereafter, in October
1979, the unfair practice charges in this case were amended to
add allegations concerning this new memorandum. 	To date the
August 1 memorandum remains in effect, it has never been
rescinded. The only alternatives which appeared to be
available other than mailing to employees at their State
address would be to establish a bin system.
G. 	Practices Concerning Delivery of Personal
Mail Before and After August 1, 1978 and
September 5, 1978.
28
A.
	Yes,
	they
	are.
Q. 	What
	is
	their 	relationship
	to
	that
	law?
A.
	Well,
	I
	think 	the
	principle 	relationship
	is
	the
one
	that
	I've
	already
	mentioned,
	that's
	the
	spirit
	of
the
	law
	in
	terms
	of
	allowing
	employees
	and 	employee
organizations
	the 	opportunity
	to 	represent
	employees
and
	to
	communicate
	with
	employees.
	We
	feel 	that
	this
policy
	in 	the
	guidelines,
	the
	entire
	guideline
	was
	set
up,
	be
	it
	the
	issue
	on
	mail
	or 	access 	or
	any
	of 	the
other 	provisions 	of 	the
	guidelines,
	with
	that
	spirit
in
	mind,
	an
	attempt 	not
	to
	impede
	the
	ability
	of
	an
employee
	organization 	to
	communicate
	with
	its
	members
but
	to
	balance
	that
	ability
	with
	the
	need
	for 	the
State
	to
	continue
	to
	operate 	in
	an
	efficient
	manner
and 	a
	cost
	that's
	appropriate,
	in
	terms
	of
	notspending
	the
	State
	funds
	to
	organize 	for 	the
	employee
organizations
	but
	to
	go
	as
	far
	as
	we
	possibly
	could
	to
not
	impede
	the
	employee
	organization's
	ability.
	And
based
	on 	commentary 	from
	other
	employee
	organizations
and
	we
	seem
	to
	be
	moved,
	have
	moved
	in
	that 	direction.
(Transcript
	p.
	887,
	line 	8,
	through 	p.
	889,
	line 	18.)
On
	September
	27, 	1978, 	the
	memorandum
	dated
	September
	5 	was
sent 	to
	employee
	organizations
	that
	had
	registered
	with
	the
Governor's
	Office.
	The
	evidence
	establishes 	that
	STAA
	also
received
	a
	copy
	of 	the
	memorandum.
	Thereafter, 	in
	October
1979, 	the 	unfair 	practice
	charges 	in
	this
	case
	were 	amended
	to
add
	allegations
	concerning
	this
	new 	memorandum. 	To
	date 	the
August
	1 memorandum
	remains
	in
	effect,
	it
	has 	never 	been
rescinded.
	The
	only 	alternatives
	which
	appeared
	to
	be
available 	other 	than 	mailing 	to
	employees
	at
	their 	State
address
	would 	be
	to 	establish
	a
	bin 	system.
G.
	Practices
	Concerning 	Delivery 	of 	PersonalMa11Before
	and
	After
	August
	1,
	1978 	ana
September 	5, 	1978.
28

In Caltrans, it is apparent that employees have always and
still receive personal mail of all kinds on an individual
basis. The record is replete with evidence showing that all
types of personal mail, including solicitations by an employee
benefit organization within Caltrans has been and still is
received by the employees at their business address and at
their work stations. Some of this mail may indeed be initiated
through the State mail system itself. Other mailings come from
the United States Postal Service and are distributed through
the State mail system. 	The practices have not changed at
Caltrans and at headquarters all employees are receiving
personal mail at their business address. 	Throughout the State,
the evidence would show similarly that except for the
Department of Developmental Services, employees variously
receive personal mail at their business address. 	With regard
to volume of bulk mailings which are identifiable, such
personal mail may on occasion be returned to the sender.
However, there is only evidence of one instance of where a
volume mailing was returned and that was a sales solicitation
for the Encyclopedia Brittanica.
III. 	ISSUES
1. Whether the promulgateon and issuance o 	tten
po 	n August 1, 1978 which directed departments of Caltrans
to return all 	al mail addressed to employees at their
29
In
	Caltrans,
	it
	is
	apparent
	that
	employees 	have
	always
	and
still
	receive 	personal
	mail
	of
	all
	kinds
	on 	an
	individual
basis.
	The
	record
	is
	replete
	with 	evidence
	showing
	that
	all
types 	of 	personal 	mail, 	including
	solicitations
	by
	an 	employee
benefit
	organization 	within 	Caltrans
	has
	been
	and
	still
	is
received
	by
	the
	employees
	at 	their
	business
	address
	and
	at
their
	work
	stations.
	Some
	of
	this
	mail
	may
	indeed
	be
	initiated
through
	the
	State
	mail
	system
	itself.
	Other
	mailings
	come
	from
the
	United
	States 	Postal
	Service
	and
	are
	distributed
	through
the
	State
	mail
	system.
	The
	practices
	have
	not
	changed
	at
Caltrans
	and
	at
	headquarters
	all
	employees
	are 	receiving
personal
	mail
	at 	their
	business 	address.
	Throughout
	the
	State,
the
	evidence
	would 	show
	similarly 	that
	except 	for 	the
Department
	of
	Developmental
	Services,
	employees
	variously
receive 	personal
	mail
	at 	their
	business 	address.
	With
	regard
to
	volume
	of
	bulk
	mailings
	which
	are
	identifiable,
	such
personal
	mail
	may 	on
	occasion
	be
	returned 	to 	the 	sender.
However,
	there 	is
	only 	evidence
	of
	one
	instance 	of
	where 	a
volume
	mailing
	was
	returned
	and
	that
	was 	a
	sales
	solicitation
for 	the 	Encyclopedia
	Brittanica.
III.
	ISSUES
1.
	Whether
	the 	promulgation
	and
	issuancef a wria
	written
pollicy o on 	August
	1,
	1978
	which
	direc
	departments 	Caltrans
to 	return 	person	1
	personal 	mail 	addressed 	to
	employees
	at 	their
29

business address violated section 3519 (a) , (b) or (d) of the
State Employer Employee Relations Act or other applicable law.
2 . 	Whether the promulgateon and issuance of a written
policy on September 5, 1978 by GOER suggesting that State
agencies covered by SEERA should in their discretion establish
a central container system for personal and employee
organizational mail addressed to State employees at their
business address violated Section 3519 (a) , (b) or (d) of the
State Employer-Employee Relations Act or other applicable
law .
In its responsive brief filed simultaneously with
GOER, STAA argues, for the first time, that there has been a
violation of section 3519(c) . This argument is disregarded
since the charge has never been amended to include any
allegation of misconduct under this section of SEERA and to
permit argument on this issue would violate California
Administrative Code sections 32615 and 32655 would deprive
GOER of due process.
30
business 	address 	violated 	section 	3519(a), 	(b) 	or 	(d) 	of 	the
State 	Employer 	Employee 	Relations 	Act 	or 	other 	applicable 	law.
2. 	Whether 	the 	promulgation 	and 	issuance 	of 	a 	written
policy 	on 	September 	5, 	1978 	by GOER 	suggesting 	that 	State
agencies 	covered 	by 	SEERA should 	in 	their 	discretion 	establish
a 	central 	container 	system 	for 	personal 	and 	employee
organizational 	mail 	addressed 	to 	State 	employees 	at 	their
business 	address 	violated 	Section 	3519(a), 	(b) 	or 	(d) 	of 	the
State 	Employer-Employee 	Relations 	Act 	or 	other 	applicable
law. 226
26	261n 	its 	responsive 	brief 	filed 	simultaneously 	with
GOER, 	STAA 	argues, 	for 	the 	first 	time, 	that 	there 	has 	been 	a
violation 	of 	section 	3519(c). 	This 	argument 	is 	disregarded
since 	the 	charge 	has 	never 	been 	amended 	to 	include 	any
allegation 	of 	misconduct 	under 	this 	section 	of 	SEERA and 	to
permit 	argument 	on 	this 	issue 	wou 	violate 	California
Administrative 	Code 	sections 	32615 	and 	32655 	would 	depr
GOER of 	due 	process.
30
6

IV. CONCLUSIONS OF LAW
A. 	The Limitations on the Use of the State Mail Distribution
System Embodied in the Memoranda of August 1, 1978 and
September 5, 1978, Violate Employee's Rights Set Forth in
Section 3515 of SEERA.
1. The Positions of the Parties
As found above, the Caltrans memorandum of August 1, 1978
and the GOER memorandum of September 5, 1978 both restrict the
distribution of employee organizational mail sent via United
States postal service to State employees at their business
address. Charging party contends that the restrictions on
access to State employees by mail unlawfully limits employee
rights protected by SEERA as well as rights protected by state
and federal statutes and constitutions. GOER on behalf of
itself and Caltrans contends that the restrictions on use of
the State mail system are permissible limitations which the
State may impose in order to carry out its governmental
function and are consistent with past policies and practices.
2. The Rights of State Employees under SEERA
Section 3519 provides in relevant part:
It shall be unlawful for the state 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 . 27
section 3543.5 (a) of EERA and section 3571 of HEERA are	27
identical in language to this section of SEERA.
31
IV.
	CONCLUSIONS
	OF
	LAW
A. 	The
	Limitations
	on
	the
	Use
	of
	the
	State
	Mail
	Distribution
System
	Embodied
	in 	the
	Memoranda
	of
	August
	1,
	1978
	and
September
	5,
	1978,
	Violate
	Employee's
	Rights 	Set 	Forth 	inSection
	3515
	of
	SEERA.
1.
	The
	Positions 	of 	the
	Parties
As
	found
	above,
	the
	Caltrans
	memorandum
	of
	August
	1,
	~978
and
	the
	GOER
	memorandum
	of
	September
	5,
	1978
	both
	restrict
	the
distribution
	of
	employee
	organizational
	mail
	sent 	via
	United
States 	postal 	service
	to
	State
	employees
	at 	their
	business
address.
	Charging
	party
	contends
	that
	the
	restrictions
	on
access 	to
	State
	employees
	by
	mail 	unlawfully
	limits
	employee
rights
	protected
	by
	SEERA
	as
	well
	as
	rights
	protected
	by
	state
and
	federal
	statutes
	and
	constitutions.
	GOER
	on
	behalf
	of
itself
	and
	Caltrans
	contends
	that
	the
	restrictions
	on
	use
	of
the
	State
	mail
	system
	are 	permissible
	limitations
	which
	the
State
	may 	impose
	in 	order 	to 	carry
	out
	its
	governmental
function
	and
	are
	consistent
	with
	past 	policies
	and
	practices.
2. 	The
	Rights
	of 	State
	Employees 	under
	SEERA
Section
	3519
	provides 	in
	relevant 	part:
It
	shall
	be
	unlawful 	for 	the
	state
	to:
(a) 	Impose
	or 	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate 	or 	threaten 	todiscriminate 	against
	employees,
	or 	otherwise
to 	interfere
	with,
	restrain,
	or 	coerceemployees 	because
	of 	their 	exercise 	of
rights
	guaranteed
	by
	this
	chapter.27
27
section 	3543.5(a) 	of
	EERA
	and
	section
	3571
	of
	HEERA
	are
identical 	in 	language 	to 	this 	section
	SEERA.
31

Employee rights guaranteed by SEERA are:
Except as otherwise provided by the
Legislature, state employees shall have the
right to form, join, and participate in the
activities of employee organizations of
their own choosing for the purpose of
representation on all matters of
employer-employee relations. 	State
employees also shall have the right to
refuse to join or participate in the
activities of employee organizations, except
that nothing shall preclude the parties from
agreeing to a maintenance of membership
provision, as defined in subdivision (h) of
Section 3513, pursuant to a memorandum of
understanding. In any event, state
employees shall have the right to represent
themselves individually in their employment
relations with the state. 28 (Go 	ode
section 3515; emphasis supplied. )
While there is little State precedent on the issue of
unfair practices under SEERA, PERB has had occasion recently to
interpret the parallel sections of the EERA relating to
28 Similarly EERA provides in relevant part:
Public school employees shall have the right
to form, join, and participate in the
activities of employee organizations of
their own choosing for the purpose of
representation on all matters of
employer-employee relations. 	Public school
employees shall also have the right to
refuse to join or participate in the
activities of employee organizations and
shall have the right to represent themselves
individually in their employment relations
with the public school employer . .
(Gov. Code section 3543.)
See 	overnment Code section 3565 for the rights
of higher education employees.
32
Employee
	rights
	guaranteed
	by
	SEERA
	are:
Except
	as
	otherwise
	provided
	by
	the
Legislature,
	state
	employees
	shall
	have
	the
right
	to
	form,
	join,
	and
	participate
	in 	the
activities
	of
	employee
	organizations
	of
their
	own
	choosing
	for 	the
	purpose
	of
representation
	on
	all
	matters 	of
employer-employee
	relations. 	State
employees
	also
	shall
	have
	the
	right
	torefuse 	to
	join
	or
	participate
	in 	the
activities
	of
	employee
	organ1zat1ons, 	except
that
	nothing
	shall
	preclude 	the
	parties
	from
agreeing
	to
	a
	maintenance
	of
	membership
provision,
	as 	defined 	in
	subdivision
	(h)
	of
Section
	3513, 	pursuant
	to
	a 	memorandum
	ofunderstanding. 	In
	any
	event,
	state
employees
	shall
	have
	the
	right
	to 	represent
themselves
	individually
	in
	their
	employment
relations
	with
	the
	state.28	v. C 	(Gov. 	Code
section
	3515;
	emphasis
	supplied.)
While
	there
	is
	little
	State
	precedent
	on
	the 	issue
	of
unfair 	practices
	under
	SEERA,
	PERB
	has
	had
	occasion
	recently 	to
interpret
	the
	parallel
	sections 	of 	the
	EERA
	relating
	to
28similarly
	EERA
	provides 	in
	relevant 	part:
Public 	school
	employees
	shall
	have
	the
	rightto
	form,
	join,
	and
	participate
	in 	the
activities
	of
	employee
	organizations 	of
their
	own
	choosing 	for 	the 	purpose
	of
representation
	on
	all
	matters 	of
employer-employee
	relations.
	Public 	school
employees
	shall 	also
	have
	the
	right
	to
refuse 	to 	join
	or
	participate
	in 	the
activities
	of
	employee
	organizations
	and
shall
	have
	the
	right 	to 	represent
	themselves
individually 	in
	their
	employment
	relations
with 	the 	public 	school
	employer
	....
(Gov. 	Code
	sect 	3543.)
See also GGovernment 	Code
	section
	3565
	for 	the 	rightsof 	higher 	education 	employees.
32

employee rights in the context of a no-solicitation rule that
barred use of the school mail system. 	(See Richmond Federation
of Teachers v. Richmond Unified School District and Simi
Educators Association CTA/NEA v. Simi Valley Unified School
District (8/1/79) PERB Decision No. 99.) In Richmond and Simi,
PERB found unfair practices had been committed when two school
districts denied the use of the school mail system to employees
and employee organizations. Although the Richmond-Simi
decision devoted substantial portions of its analysis to the
question of whether the employer's conduct violated employee
organization rights, at the end of its decision, PERB
confronted the question of whether denial of access to a
school's mail system was a denial of protected employee
rights. 	(Id. at pp. 29-31.)
PERB found that "[al 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 the EERA . 	. " (Id. at p. 29.) PERB held
that the rights of employees protected by the EERA were the
rights to form, join and participate in the activities of
employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations.
The Board went on to find that denial of access to the
employer's internal mail system causes some harm to employee
rights under EERA. Having made such a finding, PERB held that
33
employee
	rights
	in 	the 	context 	of
	a
	no-solicitation
	rule
	that
barred
	use
	of
	the 	school 	mail
	system.
	(See
	Richmond
	Federation
of
	Teachers 	v.
	Richmond
	Unified
	School
	District
	and
	Simi
Educators
	Association
	CTA/NEA
	v.
	Simi
	Valley 	Unified
	School
District
	(8/1/79)
	PERB
	Decision
	No.
	99.)
	In
	Richmond
	and
	Simi,
PERB
	found
	unfair
	practices
	had
	been 	committed
	when 	two
	school
districts
	denied
	the
	use
	of
	the 	school 	mail
	system
	to
	employees
and 	employee
	organizations.
	Although
	the
	Richmond-Simi
decision
	devoted
	substantial
	portions
	of
	its
	analysis 	to 	the
question 	of
	whether
	the 	employer's 	conduct
	violated
	employee
organization
	rights, 	at
	the
	end
	of
	its
	decision,
	PERB
confronted 	the 	question 	of
	whether
	denial 	of 	access
	to
	a
school's
	mail
	system
	was 	a
	denial 	of 	protected
	employee
r i g
ht
s . 	(
Id
•
	at
	pp
. 	2 9 -
31.
)
PERB
	found
	that
	"[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
	the
	EERA
	...
	11
	(Id.
	at
	p. 	29.)
	PERB
	held
that
	the
	rights
	of
	employees
	protected
	by
	the
	EERA
	were
	the
rights 	to
	form,
	join
	and
	participate
	in 	the
	activities 	of
employee
	organizations 	of
	their
	own
	choosing 	for 	the 	purpose 	of
representation
	on
	all
	matters 	of
	employer-employee
	relations.
The 	Board 	went 	on
	to 	find 	that 	denial 	of 	access 	to 	the
employer's 	internal
	mail 	system 	causes
	some 	harm
	to
	employee
rights
	under 	EERA. 	Having 	made 	such 	a
	finding,
	PERB
	held 	that
33

absent the respondent's showing its conduct was a result of
operational necessity or circumstances beyond its control, the
conduct constituted interference, restraint or coercion in
violation of section 3543.5 (a) of the EERA. (See Carlsbad
Unified School District (1/30/79 PERB Decision No. 89, at
pp. 10-11; Richmond, supra, at p. 29-30.)
3. Supporting Federal and State Precedent
PERB's holding in Richmond-Simi that a denial of access to
employees violates certain rights under the State EERA is
consistent with and supported by longstanding precedent under
the NLRA. 29 The provisions of the National Labor Relations
Act give employees similar rights and protections to those
provided by EERA and SEERA. Thus, section 7 of the NLRA
provides:
Employees shall have the right to
self-organization, to form, join, or assist
labor organizations, to bargain collectively
through representatives of their own
choosing . 	. and shall also have the right
to refrain from any or all such
activities .
Section 8 (a) of the National Labor Relations Act provides
in relevant part that:
PERB may use federal labor law precedent where	29
applicable to the public sector labor law issues. (Sweetwater
Union High School District (5/22/78) EERB Decision No. 4 (PERB
was previously known as the Educational Employment Relations
Board, or EERB) . Also, see Fire Fighters Union v. City of
Vallejo (1974) 12 Cal. 3d 611. )
34
absent 	the 	respondent's 	showing 	its 	conduct 	was 	a 	result 	of
operational 	necessity 	or 	circumstances 	beyond 	its 	control, 	the
conduct 	constituted 	interference, 	restraint 	or 	coercion 	in
violation 	of 	section 	3543.S{a) 	of 	the 	EERA. 	(See 	Carlsbad
Unified 	School 	District 	(1/30/79 	PERB 	Decision 	No. 	89, 	at
pp. 	10-11; 	Richmond, 	supr~, 	at 	p. 	29-30.)
3. 	Supporting 	Federal 	and 	State 	Precedent
PERB's 	holding 	in 	Richmond-Simi 	that 	a 	denial 	of 	access 	to
employees 	violates 	certain 	rights 	under 	the 	State 	EERA 	is
consistent 	with 	and 	supported 	by 	longstanding 	precedent 	under
the 	NLRA.29 	The 	provisions 	of 	the 	National 	Labor 	Relations
Act 	give 	employees 	similar 	rights 	and 	protections 	to 	those
provided 	by EERA 	and 	SEERA. 	Thus, 	section 	7 	of 	the 	NLRA
provides:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing 	•.. 	and 	shall 	also 	have 	the 	right
to 	refrain 	from 	any 	or 	all 	such
activities
Section 	8(a) 	of 	the 	National 	Labor 	Relations 	Act 	provides
in 	relevant 	part 	that:
29PERB 	may 	use 	federal 	labor 	law 	precedent 	where
applicable 	to 	the 	public 	sector 	labor 	law 	issues. 	(Sweetwater
Union 	High 	School 	District 	(5/22/78) 	EERB 	Decision No. 	4 	(PERB
was 	previously 	known 	as 	the 	Educational 	Employment 	Re
Board, 	or 	EERB). 	Also, 	see 	Fire 	Fighters 	Union 	v. 	~c,~i-~-~~
Vallejo 	(1974) 	12 	Cal.3d 	611-.-)--
34

It shall be an unfair labor practice for an
employer--
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in section 7;
(3) by discrimination in regard to hire or
tenure of employment or any term or
condition of employment to encourage or
discourage membership in any labor
organization; .
The NLRB and the Supreme Court recognized early on that
employee organization access to employees was necessary in
order to secure to employees their section 7 rights to
self-organization and to freely choose whether to join or not
to join an employee organization. However, the Court and the
NLRB have long attempted to work out an accord between the
undisputed right of employees to self-organization and the
rights of employers to maintain discipline in their
establishments. 	(Republic Aviation Corp. v. NLRB (1945)
324 U.S. 793 [16 LRRM 620] .) Thus, the NLRB and the courts
seek to balance the interests of the employees in
self-organization against the interests of the employer in
managing a sound business operation. It is important to note
that the balance struck is between management rights of an
employer and employee organizational rights protected by the
NLRA. (Cf. Peyton Packing Company (1943) 49 NLRB 828 [12 LRRM
183], enf'd (5th Cir.) 142 F. 2d 1009 [14 LRRM 792] .)
35
It 	shall 	be 	an 	unfair 	labor 	practice 	for 	an
employer--
(1) 	to 	interfere 	with, 	restrain, 	or 	coerce
employees 	in 	the 	exercise 	of 	the 	rights
guaranteed 	in 	section 	71
(3) 	by 	discrimination 	in 	regard 	to 	hire 	or
tenure 	of 	employment 	or 	any 	term 	or
condition 	of 	employment 	to 	encourage 	or
discourage 	membership 	in 	any 	labor
organization; 	...
The 	NLRB 	and 	the 	Supreme 	Court 	recognized 	early 	on 	that
employee 	organization 	access 	to 	employees 	was 	necessary 	in
order 	to 	secure 	to 	employees 	their 	section 	7 	rights 	to
self-organization 	and 	to 	freely 	choose 	whether 	to 	join 	or 	not
to 	join 	an 	employee 	organization. 	However, 	the 	Court 	and 	the
NLRB 	have 	long 	attempted 	to 	work 	out 	an 	accord 	between 	the
undisputed 	right 	of 	employees 	to 	self-organization 	and 	the
rights 	of 	employers 	to 	maintain 	discipline 	in 	their
establishments. 	(Republic 	Aviation 	Corp. 	v. 	NLRB 	(1945)
324 	U.S. 	793 	[16 	LRRM 	620] .) 	Thus, 	the 	NLRB 	and 	the 	courts
seek 	to 	balance 	the 	interests 	of 	the 	employees 	in
self-organization 	against 	the 	interests 	of 	the 	employer 	in
managing 	a 	sound 	business 	operation. 	It 	is 	important 	to 	note
that 	the 	balance 	struck 	is 	between 	management 	rights 	an
employer 	and 	employee 	organizational 	rights 	protected 	by 	the
NLRA. 	(Cf. 	Pey 	Packing 	Company 	( 	43) 	49 	NLRB 	828 	[12 	LRRM
18 3 ] , 	en f I d 	( 5th C i r . ) 	14 2 F . 2 d 	10 0 9 	[ 14 	LRRM 	7 9 2 ] . )
35

In striking this balance, the NLRB relies upon a series of
presumptions which cause the shifting of the burden of proof,
depending upon the nature of the facts of the particular case.
In general, however, the board has held, and courts have
enforced, a presumption that no-solicitation rules which
prohibit solicitation of employees while they are working, is
presumptively valid. To overcome the validity of the rule, it
is incumbent upon the charging party to prove that the rule is
excessive and that there are no alternative means to reach
their fellow employees. Conversely the NLB has presumed that
restraints upon employees' solicitation of their fellow
employees, when not working, are presumptively invalid. There,
the burden of proof would shift to the respondent to show that
managerial interests and operational necessity justified the
enforcement of that rule. 	(Essex International, Inc. (1974)
211 NLRB 749 [86 LRRM 1411]. See also Groendyke Transport,
Inc. (1974) 211 NLRB 921 [86 LRRM 1636], enf'd (10th Cir. ) 530
F. 2d 139 [91 LRRM 2405]; Walton Manufacturing Co. (1960)
126 NLRB 697 [45 LRRM 1370] , enf'd (5th Cir. ) 289 F. 2d 177
[47 LRRM 2794] . )
Some NLRB decisions also indicate that employees'
organizing activities may be restricted not only to non-work
time 	lves
distribution of campaign l 	re. In such cases there is a
likelihood that the materials being distributed in the course
36
In
	striking
	this
	balance, 	the
	NLRB
	relies
	upon 	a
	series
	of
presumptions
	which
	cause
	the
	shifting
	of 	the
	burden
	of
	proof,
depending
	upon
	the 	nature 	of
	the
	facts
	of 	the
	particular
	case.
In
	general,
	however,
	the
	board 	has
	held,
	and
	courts
	have
enforced,
	a
	presumption
	that 	no-solicitation
	rules
	which
prohibit
	solicitation
	of
	employees
	while 	they
	are
	working,
	is
presumptively
	valid.
	To
	overcome
	the
	validity
	of
	the
	rule,
	it
is
	incumbent
	upon
	the 	charging
	party 	to
	prove
	that
	the
	rule 	is
excessive
	and
	that
	there
	are
	no
	alternative
	means
	to
	reach
their
	fellow
	employees. 	Conversely
	the
	NLRB
	has
	presumed
	that
restraints
	upon
	employees'
	solicitation
	of
	their
	fellow
employees,
	when
	not
	working,
	are
	presumptively
	invalid.
	There,
the
	burden
	of 	proof
	would
	shift
	to 	the 	respondent
	to
	show
	that
managerial
	interests
	and
	operational 	necessity
	justified
	the
enforcement
	of
	that 	rule.
	(E~sex
	International,
	Inc.
	( 197 4)
211
	NLRB
	749 	[86
	LRRM
	1411].
	See
	also
	Groendyke
	Transport,
Inc.
	(1974) 	211
	NLRB
	921 	[86
	LRRM
	1636], 	enf 'd
	(10th
	Cir.)
	530
F.2d
	139 	[91
	LRRM
	2405];
	Walton
	Manufacturing
	Co. 	(1960)
126
	NLRB
	697 	[45
	LRRM
	1370],
	enf'd
	(5th
	Cir.)
	289
	F.2d
	177
[ 4 7 	LRRM 2 7 9 4 ] • )
Some
	NLRB
	decisions 	also 	indicate 	that
	employees'
organizing
	activities
	may 	be
	restricted
	not 	only 	to
	non-work
t 	but to non-work areas when the activity invo	
but 	to
	non-work
	areas
	when
	activi
	involves
distribution 	of
	campa	iteratu
literature.
	In 	such 	cases 	there 	is
	a
likelihood 	that 	the 	materials 	being
	distributed 	in 	the 	course
36

of the solicitation would lead to a littering hazard in a
factory setting. (Stoddard-Quirk Mfg. Co. (1962) 138 NLRB 615
[51 LRRM 1110]; see also Bankers Club, Inc. (1975) 218 NLRB 22
[89 LRRM 1812] ; Seng Company (1974) 210 NLRB 936 [86 LRRM
1372] .) However, the considerations are not the same in an
office setting.
Despite these better known presumptions, the board and the
courts have acknowledged that "formulation of generalized rules
must be undertaken with caution for, patently, differing
fact situations call for differing accommodations." 	(NLRB v.
Steelworkers of America, CIO (Nutone Inc. ) (1958) 357 U.S. 357,
364; Stoddard-Quirk Mfg. Co., supra, 51 LRRM at 617.) Thus,
traditional means of communication may not always be feasible
to reach employees and the limits of reasonable regulation may
depend upon the access alternatives available and the
restrictions which such regulations place upon meaningful
communication. 	(NLRB v. Magnavox Co. (1974) 415 U.S. 322, 326
[85 LRRM 2475]; Hudgens v. NLRB (1976) 424 U. S. 507 [91 LRRM
2489, 2499]; Hughes v. Superior Court (1950) 389 U.S. 460, 465
[26 LRRM 2072, 2073-2074]; Labor Board v. Babcock and Wilcox
Co. (1956) 351 U.S. 105 [38 LRRM 2001].)
The above analysis of case law indicates that regulation of
employee a 	ss there is a
likelihood that it will cause a substantial disruption to or
interference with the employer's operations. Further, analysis
37
of
	the
	solicitation
	would
	lead
	to
	a
	littering
	hazard
	in
	a
factory
	setting.
	(Stoddard-Quirk
	Mfg. 	Co. 	(1962} 	138
	NLRB
	615
[51
	LRRM
	1110] 1	
see
	also
	Bankers 	Club,
	Inc.
	(1975) 	218
	NLRB
	22
[89
	LRRM
	1812];
	Seng Company 	(1974) 	210
	NLRB
	936 	[86
	LRRM
1372]
.)
	However,
	the
	considerations
	are 	not 	the
	same
	in
	en
office 	setting.
Despite 	these
	better
	known
	presumptions, 	the
	board
	and
	the
courts
	have 	acknowledged
	that
	"formulation
	of 	generalized
	rules
...
	must 	be
	undertaken 	with
	caution
	for, 	patently, 	differing
fact 	situations
	call
	for
	differing
	accommodations."
	(NLRB
	v.
Steelworkers 	of
	America,
	CIO
	(Nutone
	Inc.)
	(1958)
	357
	U.S. 	357,
364;
	Stoddard-Quirk
	Mfg.
	Co., 	supra,
	51
	LRRM
	at
	617.)
	Thus,
traditional
	means
	of
	communication
	may
	not
	always 	be
	feasible
to
	reach
	employees
	and
	the
	limits
	of 	reasonable
	regulation
	may
depend
	upon
	the 	access
	alternatives 	available
	and
	the
restrictions
	which
	such
	regulations 	place
	upon
	meaningful
communication.
	(NLRB
	v.
	Magnavox 	Co. 	(1974) 	415
	U.S. 	322,
	326
[85
	LRRM
	2475];
	Hudgens
	v.
	NLRB
	(1976) 	424
	U.S.
	507 	[91
	LRRM
2489, 	2499];
	Hughes 	v.
	Superior 	Court
	(1950) 	389
	U.S. 	460,
	465
[26
	LRRM
	2072, 	2073-2074];
	______
	v. 	Babcock 	and 	Wilcox
Co. 	(1956) 	351 	U.S.
	105 	[38
	LRRM
	2001].)
The 	above
	analysis 	of 	case
	law
	indicates 	that 	regulation 	of
access	ccess will be presumed unreasonable unle	
will
	be 	presumed
	unreasonable 	ss 	there 	is
	a
likelihood 	that
	it
	will
	cause
	a
	substantial 	disr 	to 	or
interference 	with 	the 	employer's 	operations. 	Further, 	analysis
37

of the methods of communication is required to determine
whether they adequately are designed to reach the employees of
the employer. 	(Richmond Unified School District, PERB
Decision No. 99 at p. 19; See and compare, ALRB v. Superior
Court (1976) 16 Cal. 3d 292, 406-408, 414.)
4. The August 1 Memorandum
The facts of the present case demonstrate unique
circumstances which require examination and modification of
rules of access traditionally presumed appropriate. As found
above, organizing of State employees takes place statewide. 	In
the case of the unit which STAA seeks to represent, 1650 State
attorneys have been combined with State hearing officers to
comprise an appropriate unit of almost 2,000 persons. These
employees, as is the case with other State employees, work at
State facilities in perhaps hundreds of locations within the
borders of California.
STAA is an organization with membership in only four
California cities: Sacramento, Los Angeles, San Francisco and
San Diego. 	An on-site visit to other attorneys to enlist their
support is difficult since State employees are so widely
scattered. The only effective way to reach employees sought to
be organized is by resort to a secondary means of
communication, the United States mail. It has been found ab
that obtaining home addresses is not permitted by the State.
For unions to attempt to independently locate State employees'
38
of 	the 	methods 	of 	communication 	is 	required 	to 	determine
whether 	they 	adequately 	are 	designed 	to 	reach 	the 	employees 	of
the 	employer. 	(Richmond 	Unified 	School 	District, 	PERB
Decision No. 	99 	at 	p. 	19; 	See 	and 	compare, 	ALRB 	v. 	Superior
Court 	(1976) 	16 	Cal.3d 	292, 	406-408, 	414.)
4. 	The 	August 	1 Memorandum
The 	facts 	of 	the 	present 	case 	demonstrate 	unique
circumstances 	which 	require 	examination 	and 	modification 	of
rules 	of 	access 	traditionally 	presumed 	appropriate. 	As 	found
above, 	organizing 	of 	State 	employees 	takes 	place 	statewide. 	In
the 	case 	of 	the 	unit 	which 	STAA seeks 	to 	represent, 	1650 	State
attorneys 	have 	been 	combined 	with 	State 	hearing 	officers 	to
comprise 	an 	appropriate 	unit 	of 	almost 	2 7 000 	persons, 	These
employees, 	as 	is 	the 	case 	with 	other 	State 	employees, 	work 	at
State 	facilities 	in 	perhaps 	hundreds 	of 	locations 	within 	the
borders 	of 	California.
STAA 	is 	an 	organization 	with 	membership 	in 	only 	four
California 	cities: 	Sacramento, 	Los 	Angeles, 	San 	Francisco 	and
San 	Diego. 	An 	on-site 	visit 	to 	other 	attorneys 	to 	enlist 	their
support 	is 	difficult 	since 	State 	employees 	are 	so 	widely
scattered. 	The 	only 	effective 	way 	to 	reach 	employees 	sought 	to
be 	organized 	is 	by 	resort 	to 	a 	secondary means 	of
communication, 	the 	United 	States 	mail. 	It 	has 	been ove
that 	obtaining 	home 	addresses 	is 	not 	permitted 	by 	the 	State.
For 	unions 	to 	attempt 	to 	independently 	locate 	State 	employees'
38

home addresses would be almost impossible in view of the
evidence which shows that even locating business addresses of
State employees is a time-consuming, inaccurate and overly
burdensome task. Absent direct oral solicitation, the only
viable alternative means of reaching State employees is by mail
to their business address. 	(See Belcher Towing Co. (1978) 238
NLRB No. 63 [99 LRRM 1566, 1567] and cases cited therein; and
compare ALRB v. Superior Court, supra, 16 Cal. 3d at p. 408.)
While posting on a bulletin board might well reach some
employees, there is no assurance that this is a reasonable
alternate means of communication which will ensure employees'
review of the voluminous materials which charging party mailed
to each of the persons whom it sought to organize. (See NLRB
v. Magnavox Co. supra 415 U.S. at 326.) The employees have a
right to know who is soliciting their membership and they have
a right to determine, based upon all of the facts, whether one
organization can better suit their needs than another. The
only way employees could hope to have all the information
available would be to receive it in a direct fashion that would
permit considered evaluation. No organization except one with
representatives in every governmental facility could reach
employees in order to solicit them on a one to one basis.
Therefore, the only reasonable means of access to State
39
home
	addresses
	would
	be
	almost 	impossible
	in
	view
	of
	the
evidence
	which
	shows
	that
	even
	locating
	business 	addresses
	of
State
	employees
	is
	a
	time-consuming,
	inaccurate
	and
	overly
burdensome
	task.
	Absent
	direct 	oral
	solicitation,
	the 	only
viable
	alternative
	means
	of
	reaching
	State
	employees
	is
	by
	mail
to
	their
	business 	address.
	(See
	Belcher
	Towing Co.
	(1978)
	238
NLRB
	No.
	63
	[99
	LRRM
	1566,
	1567]
	and
	cases
	cited 	therein;
	and
compare
	ALRB
	v.
	Superior 	Court, 	supr~,
	16
	Cal.
3d
	at
	p. 	408.)
While
	posting
	on 	a
	bulletin
	board 	might
	well 	reach
	some
employees,
	there
	is
	no
	assurance
	that 	this 	is
	a
	reasonable
alternate
	means
	of
	communication 	which
	will
	ensure 	employees'
review
	of
	the
	voluminous
	materials
	which
	charging
	party
	mailed
to
	each
	of
	the 	persons
	whom
	it
	sought
	to 	organize.	
(See
---·-·-
NLRB
v.
	Magnavox 	Co.
	supr~
	415 	U.S.
	at
	326.)
	The
	employees 	have
	a
right
	to
	know 	who
	is 	soliciting 	their
	membership 	and
	they
	have
a
	right
	to
	determine,
	based
	upon
	all
	of 	the
	facts,
	whether
	one
organization
	can
	better 	suit 	their
	needs 	than 	another.
	The
only
	way
	employees
	could
	hope
	to
	have
	all
	the 	information
available
	would 	be
	to 	receive
	it
	in
	a
	direct
	fashion
	that
	would
permit 	considered 	evaluation.
	No
	organization 	except
	one 	with
representatives 	in 	every 	governmental
	facility
	could 	reach
employees
	in 	order 	to
	solicit
	them on 	a 	one
	to
	one
	basis.
Therefore, 	the 	only 	reasonable
	means
	of 	access 	to 	State
\
39

employees, so geographically widespread would be through the
United States mails.
Caltrans and GOER argue that use of the State mail
distribution system will result in an increased cost in terms
of manpower and efficiency. While on its face, this argument
has some appeal, there is no evidence in the record to
substantiate these anticipated fears. It is clear that the
mere anticipation of disruption to the State's operation is not
sufficient justification to permit denial of the only viable
means of access to State employees available to their fellow
employees or employee organizations. 	(Richmond-Simi; supra,
PERB Decision No. 99, at pp. 19-20; NLRB v. Magnavox Co.;
District (1969) 393 U.S. 503, 508 [21 L. Ed. 2d 731].) In any
case, the record in this matter reveals that it would cost the
State more to sort out employee organizational mail than it
would to distribute it to the employees. 30
The policies of Caltrans later adopted by the GOER are
based on the theory that if employee organizational activity
causes the State to incur any cost, it may be prohibited. 	This
is simply not the law.
30Reserved to the section IV. A. 5., infra, is the
discussion of whether placing organization mail in the bins
would in any way be a reduction in cost to the State justifying
such a prohibition as found in the September 5 memorandum.
40
employees, 	so
	geographically
	widespread
	would 	be
	through
	the
United
	States
	mails.
Caltrans
	and
	GOER
	argue
	that
	use
	of
	the
	State
	mail
distribution
	system
	will
	result
	in
	an
	increased
	cost
	in 	terms
of
	manpower
	and
	efficiency.
	While
	on
	its
	face,
	this
	argument
has
	some
	appeal, 	there
	is
	no
	evidence
	in 	the 	record
	to
substantiate
	these
	anticipated 	fears.
	It
	is 	clear 	that
	the
mere
	anticipation
	of 	disruption 	to
	the
	State's
	operation
	is
	not
sufficient 	justification
	to
	permit
	denial 	of 	the
	only
	viable
means
	of
	access
	to 	State
	employees
	available 	to
	their
	fellow
employees
	or
	employee
	organizations.
	(Richmond-Simi:
	supra,
PERB
	Decision
	No.
	99,
	at
	pp.
	19-20;
	NLRB
	v.
	Magnavox 	Co.1
supra, 415 U.S. at 326; Tinker v. Desmoines Independent School
District
	(1969) 	393 	U.S.
	503,
	508 	[21
	L.Ed.2d
	731].)
	In
	any
case,
	the 	record 	in
	this
	matter 	reveals
	that
	it
	would
	cost
	the
State
	more
	to
	sort
	out
	employee
	organizational
	mail 	than
	it
would
	to
	distribute
	it
	to 	the
	employees.30
The
	policies
	of 	Caltrans
	later
	adopted
	by
	the
	GOER
	are
based
	on
	the 	theory
	that
	if
	employee
	organizational
	activity
causes 	the 	State 	to 	incur
	~ny
	cost,
	it
	may 	be
	prohibited.
	This
is
	simply 	not 	the
	law.
30Reserved
	.
	to 	the
	s
et
	c 	IV . 	A . 	5 . , 	f
ra,
	1
·s 	th
e
discussion 	of
	whether
	placing 	organization 	mail 	in 	the 	bins
would
	in
	any 	way 	be 	a
	reduction 	in 	cost 	to 	the 	State 	justifying
such 	a
	prohibition 	as 	found 	in 	the 	September 	5 memorandum.
40

Although it could be argued that use of the United States
mails improperly requires the State to actively participate in
or assist by distributing union mail to employees through the
State internal mail system, this, in and of itself, would not
constitute an improper burden upon the State. The Act is
replete with obligations upon the State once an exclusive
representative has been put in place. Furthermore, it is clear
that there is no guarantee that when an employee relations law
is established that the employer's duties remain the same or
lessen. 	Indeed, laws recognize that employers' duties will
increase in the face of a statutory obligation to treat with
its employees and their representatives. 	(Richmond-Simi ,
supra, PERB Decision No. 99, at pp. 11 and 12.)
The State argues that if employee organizational mail is
distributed to employees at their business address, it may
result in their reading the mail during worktime. 	This concern
can be obviated by a rule which would prohibit employees from
reading union literature during work time. (See Pittsburg
Unified School District (2/10/78) PERB Decision No. 47.) Such
a prohibition would be consistent with the needs of the union
to communicate with employees and yet the employer's concern
that employees do their work as required.
Respondent argues that the rule embodied in the memora
of August 1, 1978 is ba 	existing Caltrans' policies
set forth in its employee relations manuals. Contrary to
41
Although
	it
	could
	be
	argued
	that
	use
	of
	the
	United
	States
mails
	improperly
	requires
	the
	State
	to
	actively
	participate
	in
or
	assist
	by
	distributing
	union
	mail
	to
	employees
	through
	the
State 	internal
	mail 	system,
	this,
	in
	and
	of
	itself,
	would
	not
constitute
	an
	improper 	burden
	upon
	the
	State.
	The
	Act
	is
replete
	with
	obligations
	upon
	the
	State
	once
	an
	exclusive
representative
	has 	been
	put 	in
	place.
	Furthermore,
	it
	is
	clear
that
	there
	is
	no
	guarantee
	that
	when
	an 	employee
	relations
	law
is
	established
	that
	the 	employer's
	duties
	remain
	the
	same
	or
lessen.
	Indeed,
	laws
	recognize
	that
	employers'
	duties
	will
increase
	in 	the 	face
	of
	a
	statutory
	obligation 	to
	treat
	with
its
	employees
	and
	their 	representatives.
	(Richmond-Simi,
supra,
	PERB
	Decision
	No.
	99,
	at
	pp.
	11 	and
	12.)
The
	State
	argues
	that
	if
	employee
	organizational
	mail
	is
distributed
	to
	employees
	at 	their
	business 	address,
	it
	may
result
	in
	their
	reading 	the 	mail 	during
	worktime.
	This 	concern
can 	be
	obviated
	by 	a
	rule
	which 	would
	prohibit
	employees 	from
reading
	union
	literature
	during
	work
	time.
	(See
	Pittsburg
Unified
	School
	District
	(2/10/78)
	PERB
	Decision
	No.
	47.)
	Such
a
	prohibition
	would 	be
	consistent
	with 	the
	needs
	of 	the 	union
to
	communicate
	with 	employees 	and
	yet 	the 	employer's 	concern
that
	employees 	do
	their
	work
	as 	required.
Respondent 	argues
	that
	the 	ru 	embodied
	in ndummemorandum
of
	August 	1,
	1978
	is	sed upon pre-	upon
	pre-existing 	Caltrans
1
	policies
set 	forth 	in
	its
	employee
	relations
	manuals. 	Contrary 	to
41

respondent's suggestion, the memorandum was not based upon any
existing policy at all. Indeed, it was devised out of whole
cloth and then the policy was rationalized to support it.
While the record indicates that the Caltrans Policy and
Procedures Manual was referred to by the drafters of this
memorandum, it is clear that they could not have found any
support in those past policies. The policies of Caltrans
formulated pursuant to the George Brown Act, by their terms
provide for reasonable access to employees. 	(See 45
Ops. Cal. Atty. Gen. 136, 139 (1965) .) While there is some
mention that employee organizations may not use the Caltrans
mail system for their publications, it is unclear that this
would prohibit the distribution of employee organizational mail
which had been properly postmarked and sent to employees first
through the United States Post Office and then to their mailing
address. At that point, Caltrans merely has the obligation to
deliver the United States mail to the employees in question.
The policy set forth in the manual more likely refers to the
distribution of employee organization material initiated
through the internal mail system of the department. 	The SETC
official who testified in this 	se and whose organizational
materials were returned to him, stated that, when employed by
Caltrans he dra 	hat was precisely
the intent.
42
respondent's 	suggestion, 	the
	memorandum 	was
	not
	based
	upon
	any
existing
	policy
	at
	all.
	Indeed,
	it
	was
	devised
	out
	of
	whole
cloth
	and
	then
	the
	policy
	was
	rationalized 	to
	support
	it.
While
	the 	record
	indicates 	that
	the 	Caltrans 	Policy
	and
Procedures
	Manual 	was
	referred
	to
	by
	the
	drafters
	of
	this
memorandum,
	it
	is 	clear 	that
	they 	could
	not
	have 	found 	any
support 	in 	those
	past
	policies.
	The
	policies
	of 	Caltrans
formulated 	pursuant
	to
	the
	George
	Brown
	Act,
	by
	their
	terms
provide 	for 	reasonable 	access
	to
	employees.
	(See
	45
Ops.Cal.Atty.Gen.
	136,
	139
	(1965).)
	While
	there
	is
	some
mention
	that
	employee
	organizations
	may
	not
	use
	the
	Caltrans
mail
	system
	for
	their
	publications,
	it
	is
	unclear
	that
	this
would
	prohibit
	the
	distribution
	of
	employee
	organizational
	mail
which 	had
	been
	properly
	postmarked
	and
	sent 	to
	employees
	first
through
	the
	United
	States
	Post 	Office
	and
	then
	to
	their
	mailing
address.
	At
	that 	point, 	Caltrans
	merely 	has 	the
	obligation 	to
deliver
	the
	United
	States
	mail
	to 	the
	employees
	in
	question.
The
	policy
	set
	forth
	in 	the
	manual 	more
	likely 	refers 	to 	the
distribution	
of	
employee
	organization 	material
	initiated
through 	the
	internal
	mail 	system
	of 	the 	department.
	The 	SETC
off 	ial
	who
	testified ca	
this
	case
	and 	whose
	organizational
materials
	were
	returned 	to
	him,
	stated 	that,
	when 	employed	
by
Caltrans 	drafted	fted the rule and that indeed t	
rule 	that
	indeed
	that
	was
	precise
the 	intent.
42

Finally the State argues that this is an action brought by
a labor organization and not by employees and therefore is not
a violation of section 3519 (a) . It is clear that John Sullivan
is both an employee of the State and representative of STAA.
He testified throughout the record of his interest, as an
employee as well as a union representative, in communicating
with fellow employees. Further, STAA was, until it began its
recruitment in May 1978, wholly comprised of Caltrans
employees. Denial of employee rights is clearly an issue in
this case. 	(See also, ALRB v. Superior Court, supra, 16 Cal. 3d
at 406, and cases previously cited which hold that denial of
access to employees directly affects their right to
self-organization .)
It is thus found that the memorandum of August 1, 1978
deprives State employees of their right to receive adequate
information and be informed so that they can freely choose
whether to join an employee organization. Further, the
Caltrans memo deprives employees of the right to solicit fellow
employees in order to convince them of the appropriateness of
their respective positions concerning representation.
5 . 	The Memorandum of September 5, 1978
The memorandum of the Governor's Office of Employee
Relations issued on September 5, 1978 and disseminated to all
employee organizations on or about Septmber 27, 1978, fares no
better. Based upon the law discussed above, an analysis of the
43
Finally 	the 	State 	argues 	that 	this 	is 	an 	action 	brought 	by
a 	labor 	organization 	and 	not 	by 	employees 	and 	therefore 	is 	not
a 	violation 	of 	section 	3519(a). 	It 	is 	clear 	that 	John 	Sullivan
is 	both 	an 	employee 	of 	the 	State 	and 	representative 	of 	STAA.
He 	testified 	throughout 	the 	record 	of 	his 	interest, 	as 	an
employee 	as 	well 	as 	a 	union 	representative, 	in 	communicating
with 	fellow 	employees. 	Further, 	STAA was, 	until 	it 	began 	its
recruitment 	in 	May 	1978, 	wholly 	comprised 	of 	Caltrans
employees. 	Denial 	of 	employee 	rights 	is 	clearly 	an 	issue 	in
this 	case. 	(See 	also,~ 	v. 	Superior 	Court, 	supra, 	16 	Cal.3d
at 	406, 	and 	cases 	previously 	cited 	which 	hold 	that 	denial 	of
access 	to 	employees 	directly 	affects 	their 	right 	to
self-organization.)
It 	is 	thus 	found 	that 	the 	memorandum of 	August 	1, 	1978
deprives 	State 	employees 	of 	their 	right 	to 	receive 	adequate
information 	and 	be 	informed 	so 	that 	they 	can 	freely 	choose
whether 	to 	join 	an 	employee 	organization. 	Further, 	the
Caltrans 	memo 	deprives 	employees 	of 	the 	right 	to 	solicit 	fellow
employees 	in 	order 	to 	convince 	them of 	the 	appropriateness 	of
their 	respective 	positions 	concerning 	representation.
5. 	The 	Memorandum 	of 	September 	5, 	1978
The 	memorandum of 	the 	Governor's 	Office 	of 	Employee
Relations 	iss 	on 	September 	5, 	1978 	and 	dissemi 	to 	all
employee 	organizations 	on 	or 	about 	Septmber 	27, 	78, 	fares 	no
better. 	Based 	upon 	the 	law 	discussed 	above, 	an 	analysis 	of 	the
43

memorandum of September 5, 1978 indicates that it, too,
deprives employees of rights under SEERA. The September 5
memorandum instructs departments that, in their discretion,
they may either distribute the mail or find alternatives to
such distribution as exemplified by a central container
system. The drafter of GOER's memorandum testified that each
department would have to assess its individual needs and
determine whether to distribute mail or to find an alternative
means of containing and storing the mail to permit employees to
pick the mail up.
The defects in this procedure are obvious. First, the
memorandum is ambiguous on its face. It is not clear what mail
will be distributed. While the policy is designed to permit
each department to determine whether to distribute
organizational mail according to its specific needs, this broad
and varied departmental discretion lies at the heart of the
memo's ambiguity. The memo is vague in that it contains no
assurances that employees will be notified that mail is being
held for them, that they will be free to pick up the mail, or
that it will be stored in places where it can be picked up free
from coercion by other employees or tampering by unknown
persons with access to a public centralized container.
The ultimate result of the September 5 memo is to deter
employees from communicating with other employees through the
mails. No one is going to invest any large sums in a mail
44
memorandum
	of
	September
	5,
	1978
	indicates
	that
	it,
	too,
deprives
	employees
	of
	rights
	under
	SEERA.
	The
	September
	5
memorandum
	instructs
	departments
	that,
	in
	their 	discretion,
they
	may
	either 	distribute
	the 	mail 	or
	find
	alternatives 	to
such
	distribution
	as
	exemplified
	by 	a
	central
	container
system.
	The
	drafter
	of
	GOER's 	memorandum
	testified
	that
	each
department
	would
	have
	to 	assess
	its
	individual
	needs
	and
determine
	whether
	to
	distribute
	mail 	or
	to
	find
	an
	alternative
means
	of 	containing
	and
	storing
	the
	mail
	to
	permit
	employees
	to
pick 	the
	mail
	up.
The
	defects
	in
	this
	procedure
	are
	obvious.
	First,
	the
memorandum
	is
	ambiguous 	on
	its
	face.
	It
	is
	not
	clear
	what
	mail
will
	be
	distributed.
	While
	the
	policy
	is
	designed
	to
	permit
each 	department
	to
	determine 	whether
	to
	distribute
organizational
	mail 	according
	to
	its
	specific
	needs,
	this
	broad
and
	varied 	departmental
	discretion
	lies
	at
	the
	heart 	of 	the
memo's
	ambiguity.
	The
	memo
	is
	vague
	in
	that
	it
	contains
	no
assurances
	that
	employees
	will
	be
	notified 	that
	mail
	is
	being
held 	for
	them,
	that
	they
	will
	be
	free 	to 	pick
	up
	the 	mail, 	or
that
	it
	will
	be
	stored
	in 	places
	where
	it
	can
	be
	picked
	up
	free
from
	coercion
	by
	other
	employees
	or 	tampering
	by 	unknown
persons 	with 	access 	to
	a
	public 	centralized 	container.
The
	ultimate 	result 	of 	the
	September 	5
	memo
	is 	to 	deter
employees 	from 	communicating 	with 	other
	employees 	through
	t
mails.
	No
	one
	is
	going 	to 	invest
	any
	large
	sums
	in
	a
	mail
44

campaign when the ultimate result may be that the mail will lie
around in a storage place for long periods of time before the
employees have a chance to read it. In an organizing campaign,
timing is crucial. Further, the record shows that the costs of
these mailings would be prohibitive if there was no certainty
that the mailings would be delivered. Thus, while not
requiring return of mail, the September 5 memorandum does in
fact deter mail communication by the uncertainty created. 	The
GOER policy has a chilling effect on any future attempts by
employees to communicate with their fellow employees in this
manner .
The State argues that the memorandum of September 5 is
merely a reasonable accommodation of the interests of the State
in not having its mail systems cluttered and the interests of
employees in receiving organizational mail. As with Caltrans,
the State argues that monetary costs and costs of disruption
justify the policy.
Again, as with the August 1 memorandum, there is no
evidence whatsoever on the record that the State has any
realistic concern about costs of distribution of organizational
mail. Rather, the State is merely basing the issuance of this
memorandum on unfounded fears that distribution would be more
costly. Indeed, the evidence shows that nondistribution of
organizational mail costs the Sta 	e. Every mailroom
would have to sort the organizational mail so that it could be
45
campaign
	when
	the
	ultimate
	result
	may 	be
	that
	the 	mail
	will
	lie
around
	in
	a
	storage
	place
	for
	long
	periods
	of
	time
	before 	the
employees
	have
	a
	chance
	to
	read
	it.
	In
	an
	organizing
	campaign,
timing
	is 	crucial.
	Further,
	the 	record
	shows
	that
	the
	costs
	of
these 	mailings
	would 	be
	prohibitive
	if
	there
	was 	no
	certainty
that
	the 	mailings
	would 	be
	delivered.
	Thus,
	while
	not
requiring 	return 	of 	mail, 	the
	September	
5 memorandum
	does
	in
fact
	deter
	mail
	communication
	by
	the
	uncertainty 	created.
	The
GOER
	policy
	has
	a
	chilling 	effect
	on 	any
	future 	attempts
	by
employees
	to
	communicate
	with
	their
	fellow
	employees
	in
	this
manner.
The
	State
	argues
	that
	the
	memorandum
	of
	September
	5
	is
merely
	a
	reasonable
	accommodation
	of 	the
	interests
	of 	the
	State
in 	not
	having
	its
	mail 	systems
	cluttered
	and
	the
	interests
	of
employees
	in 	receiving 	organizational
	mail.
	As
	with
	Cal
trans,
the
	State
	argues
	that
	monetary
	costs
	and
	costs 	of
	disruption
justify
	the 	policy.
Again, 	as 	with 	the
	August
	1 memorandum,
	there
	is
	no
evidence 	whatsoever
	on
	the 	record
	that
	the 	State
	has 	any
realistic
	concern 	about
	costs 	of
	distribution
	of 	organizational
mail. 	Rather, 	the 	State
	is
	merely 	basing 	the 	issuance
	this
memorandum on 	unfounded
	fears 	that 	distribution
	would 	be 	more
costly.
	Indeed, 	the 	evidence
	shows
	that 	nondistribut
organizational 	mail 	costs 	te much mormuch 	more. 	Eve 	mai.Lr.oom
would 	have
	to 	sort 	the 	organizational 	mail 	so
	that
	it
	cou 	be
45

placed in some other location for employee pickup. 	The
proposed alternative to direct distribution would impose
additional sorting procedures on State mailrooms. A separate
location would have to be found and presumably policed or
otherwise attended. Somehow, the existence of the mail would
have to be communicated to the employees. All in all, the
separation of personal mail and establishment of a container
system could only result in greater cost to the State, more
confusion to the employees and loss of the free access to
information that would allow them to make a free choice in a
bargaining representative.
The State argues that the September 5 memorandum was based
upon preexisting policies. The guidelines adopted by the GOER
were protested by STAA when they were issued in the spring of
1978. These guidelines, based upon the George Brown Act,
generally provide that employees and their organizations will
have the right of access to other employees. (See 45
Ops. Cal. Atty. Gen. , supra.) It is doubtful that the SEERA
changed that law. However, in any case, a fair reading of the
guidelines indicates that they provide for full communication
among State employees and their representatives and permit
access even in work areas during non-work time.
denial of a right to use the state mail system in the
face of policies that provide subs 	ial access to employees
in their work area is inconsistent with the spirit of the
46
placed 	in
	some
	other
	location
	for
	employee
	pickup.
	The
proposed
	alternative
	to
	direct 	distribution
	would
	impose
additional 	sorting
	procedures
	on
	State
	mailrooms.
	A
separate
location
	would
	have
	to
	be 	found 	and
	presumably
	policed 	or
otherwise 	attended.
	Somehow,
	the
	existence 	of 	the
	mail
	would
have
	to
	be 	communicated
	to
	the
	employees.
	All
	in
	all,
	the
separation 	of
	personal
	mail
	and
	establishment 	of
	a
	container
system 	could 	only
	result
	in
	greater 	cost 	to
	the
	State,
	more
confusion
	to
	the
	employees
	and
	loss 	of
	the
	free
	access
	to
information
	that
	would
	allow
	them
	to
	make 	a
	free
	choice
	in
	a
bargaining
	representative.
The
	State
	argues
	that
	the
	September
	5 memorandum was
	based
upon
	preexisting
	policies.
	The
	guidelines
	adopted
	by
	the
	GOER
were
	protested
	by
	STAA
	when
	they
	were
	issued 	in 	the 	spring 	of
1978. 	These
	guidelines,
	based
	upon
	the
	George 	Brown
	Act,
generally
	provide
	that
	employees 	and
	their
	organizations
	will
have
	the
	right
	of 	access 	to 	other
	employees.
	(See 	45
Ops.Cal.Atty.Gen., 	supra.}
	It
	is
	doubtful
	that
	the
	SEERA
changed
	that
	law.
	However,
	in
	any
	case,
	a
	fair
	reading
	of
	the
guidelines 	indicates 	that
	they 	provide 	for
	full
	communication
among
	State
	employees 	and
	their 	representatives
	and
	permit
access
	even 	in
	work
	areas 	during
	non-work
	time.
The	
denial 	of
	a
	right 	to
	use 	the
	state
	mail 	system
	in 	the
face 	of 	policies 	that
	prov tant subs
	ial
	access 	to
	employees
in 	their
	work
	area 	is 	inconsistent 	with 	the
	spirit
	of 	the
46

guidelines and the underlying statutes upon which they were
based. 	Further denial of access to the mail system while
permitting direct access to employees can result in
discrimination between large and small employee organizations
which are relegated to one means of access or another by virtue
of their size. 31
Lastly, the State argues that the September 5 memorandum
supersedes the August 1, 1978 memorandum. Having found that
the September 5 memorandum violates employee rights of access
by chilling the communication by employees with their fellow
employees, it is unnecessary to decide whether it did in fact
supersede the August 1 memorandum. However, a fair reading of
both indicates that they are probably still in effect.
The September 5, 1978, memorandum is vague, uncertain and
ambiguous and chills free communication between employees of
the State. For this reason its continued existence as a state
policy relating to SEERA constitutes a violation of employee
rights protected under section 3515 of SEERA. 	(See
Richmond-Simi, supra, PERB Decision No. 99 at pp. 20-28.)
B. 	The Policies of Caltrans and the State of California
Embodied in the Memoranda of August 1, 1978 and September
5, 1978 are Improper Regulation of Employee Organization
Access Rights.
1. The Positions of the Parties
1see discussion 	Part IV C, infra.
47
guidelines
	and
	the 	underlying
	statutes
	upon
	which
	they
	were
based.
	Further
	denial
	of 	access
	to
	the 	mail
	system
	while
permitting
	direct
	access
	to
	employees 	can
	result
	in
discrimination
	between
	large
	and
	small
	employee
	organizations
which
	are
	relegated 	to
	one
	means
	of
	access 	or 	another
	by
	virtue
of
	their
	size.31
Lastly,
	the
	State
	argues
	that
	the
	September
	5 memorandum
supersedes 	the
	August
	1,
	1978 	memorandum.
	Having 	found
	that
the
	September
	5 memorandum
	violates
	employee
	rights
	of 	access
by
	chilling
	the
	communication
	by
	employees
	with
	their
	fellow
employees,
	it
	is
	unnecessary
	to
	decide
	whether
	it
	did 	in
	fact
supersede 	the
	August
	1 	memorandum. 	However, 	a
	fair
	reading
	of
both
	indicates 	that
	they 	are
	probably
	still
	in
	effect.
The
	September
	5,
	1978,
	memorandum
	is
	vague,
	uncertain
	and
ambiguous 	and
	chills
	free
	communication 	between 	employees
	of
the
	State.
	For
	this
	reason
	its
	continued
	existence
	as
	a
	state
policy 	relating 	to
	SEERA
	constitutes
	a
	violation
	of
	employee
rights 	protected
	under
	section
	3515
	of
	SEERA. 	(See
Richmond-Simi,
	supra,
	PERB
	Decision
	No. 	99
	at
	pp. 	20-28.)
B. 	The
	Policies 	of 	Caltrans
	and
	the 	State 	of 	California
Eml5odied
	in 	the
	Memoranda
	of
	August 	1, 	1978 	and
	September
5,
	1978
	are
	Improper
	Regulation 	of
	Employee
	Organ1zat1on
Access
	Rights.
1.
	The
	Positions 	of 	the
	Parties
3	
3lsee 	discussion in	
Part
	IV C,
	infra.
47

Charging party argues that the memoranda issued by
Caltrans and GOER violate its right of access to employees.
Charging party contends that this is not only an employee
right but an organizational right and also brings this action
on behalf of STAA. Charging party contends that STAA, as an
entity, has sustained injuries, and charging party claims
damages for monetary loss incurred by STAA in its organizing
efforts under SEERA.
The Respondent, GOER, takes the position that its conduct
in regulating use of internal mail systems was reasonable and
within the permissible bounds of state and federal law. GOER
further argues that in this case there are no rights of access
given to employee organizations similar to those rights found
under EERA or HEERA.
2 . 	The Access Rights of Employee
Organizations under SEERA
In the statutory language of SEERA, there are no express
employee organizational rights of reasonable access. 	While
EERA and HEERA provide that employee organizations shall have
reasonable rights of access to employees and the right to use
bulletin boards, mail boxes and "other means of
communication, " SEERA is silent on these specific rights.
(Compare Gov. Code secs. 3515.5 and 3515.6 with sec. 3543.1
(a) - (d) ). SEERA expressly grants employee organizations a
right to represent their members in employee relations with
48
Charging
	party
	argues
	that
	the
	memoranda
	issued
	by
Caltrans
	and
	GOER
	violate
	its
	right
	of
	access
	to
	employees.
Charging
	party
	contends
	that 	this 	is
	not 	only
	an 	employee
right
	but
	an
	organizational
	right
	and
	also
	brings
	this
	action
on
	behalf
	of
	STAA.
	Charging
	party
	contends
	that
	STAA,
	as
	an
entity,
	has
	sustained
	injuries,
	and
	charging
	party
	claims
damages
	for
	monetary
	loss
	incurred
	by
	STAA
	in
	its
	organizing
efforts
	under
	SEERA.
The
	Respondent,
	GOER,
	takes 	the
	position
	that
	its
	conduct
in
	regulating
	use
	of
	internal
	mail
	systems
	was
	reasonable
	and
within 	the 	permissible
	bounds
	of
	state
	and
	federal
	law.
	GOER
further
	argues
	that
	in
	this
	case
	there
	are
	no
	rights
	of 	access
given 	to
	employee
	organizations 	similar 	to
	those 	:rights
	found
under
	EERA
	or
	HEERA.
2.
	The
	Access
	Rights 	of
	Employee
Organizations
	under
	SEERA
In 	the
	statutory
	language
	of
	SEERA,
	there 	are
	no
	express
employee
	organizational 	rights 	of
	reasonable 	access.
	While
EERA
	and
	HEERA
	provide
	that
	employee
	organizations
	shall
	have
reasonable
	rights 	of 	access 	to
	employees 	and
	the
	right 	to
	use
bulletin
	boards, 	mail
	boxes 	and
	"other
	means
	of
communication,
11
	SEERA
	is 	silent
	on
	these 	specific 	rights.
(Compare 	Gov. 	Code
	secs. 	3515.5 	and 	3515.6
	wi
	sec.
	3543.l
(a) 	-
	(d)).
	SEERA
	expressly 	grants
	employee
	organizations
	a
right 	to 	represent 	their
	members
	in 	employee
	relations
	wi
48

the State. Further, SEERA gives these organizations the right
to exclusive representation if selected as representative of
an appropriate unit as well as the right to restrict
membership and have membership dues deducted. 32
SEERA, like its State law counterparts, EERA and HEERA,
provides that it is unlawful to "deny employee organizations
rights guaranteed to them by this chapter" (Gov. Code
32sSEERA sections 3515.5 and 3515.6 state:
Employee organizations shall have the right
to represent their members in their
employment relations with the state, 	except
that once an employee organization is
recognized as the exclusive representative
of an appropriate unit, the recognized
employee organization is the only
organization that may represent that unit in
employment relations with the state.
Employee organizations may establish
reasonable restrictions regarding who may
join and may make reasonable provisions for
the dismissal of individuals from
membership. Nothing in this section shall
prohibit any employee from appearing in his
own behalf in his employment relations with
the state. 	(Gov. Code sec. 3515.5).
All employee organizations shall have the
right to have membership dues, initiation
fees, insurance premiums, and general
assessments deducted pursuant to Sections
1156, 1156.1, and 1156.2 until such time as
an employee organization is recognized as
the exclusive representative for employees
in an appropriate unit, and then such
deductions as to any employee in the
negotiating unit shall not be permissible
except to the exclusive representative.
(Gov. Code sec. 3515.6)
49
the
	State.
	Further,
	SEERA
	gives 	these
	organizations
	the
	right
to
	exclusive
	representation
	if
	selected
	as
	representative 	of
an
	appropriate
	unit
	as
	well 	as
	the
	right
	to
	restrict
membership
	and
	have 	membership
	dues
	deducted.32
SEERA,
	like
	its
	State
	law
	counterparts,
	EERA
	and
	HEERA,
provides
	that
	it
	is
	unlawful
	to
	"deny
	employee
	organizations
rights
	guaranteed
	to
	them 	by
	this
	chapter"
	(Gov. 	Code
32 EERA
	sections
	3515.5
	and
	3515.6
	state:
Employee
	organizations
	shall
	have
	the
	right
to 	represent
	their
	members
	in
	their
employment
	relations
	with 	the
	state,
	except
that
	once
	an
	employee
	organization
	is
recognized 	as 	the 	exclusive
	representativeof
	an
	appropriate
	unit,
	the 	recognized
employee
	organization
	is
	the 	only
organization
	that
	may
	represent
	that
	unit
	in
employment
	relations
	with 	the
	state.
Employee
	organizations
	may
	establish
reasonable
	restrictions
	regarding
	who 	may
join
	and 	may make
	reasonable 	provisions 	for
the
	dismissal of 	individuals
	from
membership. 	Nothing 	in
	this
	section
	shallprohibit
	any 	employee 	from
	appearing 	in
	his
own
	behalf 	in
	his
	employment
	relations
	with
the
	state.
	(Gov. 	Code
	sec. 	3515.5).
All
	employee
	organizations
	shall
	have
	the
right 	to
	have 	membership
	dues,
	initiation
fees, 	insurance
	premiums, 	and
	generalassessments 	deducted 	pursuant 	to 	Sections
1156, 	1156.1,
	and
	1156.2
	until
	such 	time 	asan 	employee
	organization
	is
	recognized 	as
the 	exclusive 	representative 	for
	employees
in
	an
	appropriate 	unit,
	and
	then 	such
deductions 	as 	to
	any 	employee
	in 	the
negotiating 	unit
	shall
	not
	be
	permissibleexcept
	to
	the 	exclusive 	representative.
(Gov. 	Code
	sec. 	3515.6)
49

sec. 3519 (b) ) . Section 3519 (d) provides that it is unlawful
to interfere with the formation or administration of any
employee organization. 	By making it unlawful to interfere
with the formation or administration of an employee
organization, the correlative of this wrong must indeed be the
right to form or administer an employee organization.
Inherent within the right to form an employee organization
must therefore be the right to communicate with employees.
The NLRA has no provisions similar to section 3519 (b)
which makes it a violation of the Act to interfere with
employee organization rights. Nor does the NLRA provide an
express grant of any rights to employee organizations
including the right of access found in EERA section
3543. 1(b) . Yet, the NLRB and courts have found rights of
access for employee organizations implicit in the provisions
of the NLRA. Under federal law, employee organizations'
rights of access derive, in part, from the right of employees
to form, join, and/or refrain from forming or joining a labor
organization. It would make no sense to permit employees the
right of enlightened free choice in choosing a labor
organization and deny labor organizations the right of access
so that employees can freely choose. 	Therefore, under the
NLRA, employee organizations derive a right of access to
employees in order to inform them of a labor or 	's
position in an organizing campaign.
50
sec. 	3519{b)). 	Section 	3519(d) 	provides 	that 	it 	is 	unlawful
to 	interfere 	with 	the 	formation 	or 	administration 	of 	any
employee 	organization. 	By making 	it 	unlawful 	to 	interfere
with 	the 	formation 	or 	administration 	of 	an 	employee
organization, 	the 	correlative 	of 	this 	wrong 	must 	indeed 	be 	the
right 	to 	form 	or 	administer 	an 	employee 	organization.
Inherent 	within 	the 	right 	to 	form 	an 	employee 	organization
must 	therefore 	be 	the 	right 	to 	communicate 	with 	employees.
The 	NLRA 	has 	no 	provisions 	similar 	to 	section 	3519(b)
which 	makes 	it 	a 	violation 	of 	the 	Act 	to 	interfere 	with
employee 	organization 	rights. 	Nor 	does 	the 	NLRA provide 	an
express 	grant 	of 	any 	rights 	to 	employee 	organizations
including 	the 	right 	of 	access 	found 	in 	EERA 	section
3543.l(b). 	Yet, 	the 	NLRB 	and 	courts 	have 	found 	rights 	of
access 	for 	employee 	organizations 	implicit 	in 	the 	provisions
of 	the 	NLRA. 	Under 	federal 	law, 	employee 	organizations'
rights 	of 	access 	derive, 	in 	part, 	from 	the 	right 	of 	employees
to 	form, 	join, 	and/or 	refrain 	from 	forming 	or 	joining 	a 	labor
organization. 	It 	would 	make 	no 	sense 	to 	permit 	employees 	the
right 	of 	enlightened 	free 	choice 	in 	choosing 	a 	labor
organization 	and 	deny 	labor 	organizations 	the 	right 	of 	access
so 	that 	employees 	can 	freely 	choose. 	Therefore, 	under 	the
NLRA, 	employee 	organizations 	derive 	a 	right 	of 	access 	to
employees 	in 	order 	to 	inform 	them 	of 	aganizationorganization's
position 	in 	an 	organizing 	campaign.
50

Nor can the absence of an express right of access in SEERA
lead to the conclusion that the Legislature intended to deny
employee organizations any access rights. It must be assumed,
and will be discussed below, that the Legislature was aware of
the body of federal common law which gave employee
organizations access rights to employees under the federal
statute and, in addition, the Legislature must have been aware
of the constitutional constraints upon limitations of free
speech to employee organizations when they drafted SEERA.
(See Tinker v. Des Moines, supra, 393 U. S. at 514; Pickering
v. Board of Education (1968) 391 U.S. 563, 568 ; Los Angeles
Teachers Union v. Los Angeles City Board of Education (1969)
71 Cal. 2d 551, 559; and compare ALRB v. Superior Court,
supra, 16 Cal. 3d at 409, 412-413, 416-418.)
Therefore, it is concluded that the Legislature intended
that employee organizations would have no fewer rights under
SEERA than they would under basic common law principles and
under the State and federal constitutions. 33 (Ibid 	nd
ALRB v. Superior Court, supra, 16 Cal. 3d at 418.)
33It is not necessary to find a constitutional basis for
employee organization rights here since there is a statutory
right derived from common law principles. (Delaware Teachers
Federation v. Board of Education (D. Del. 1971) 335 F. Supp.
385 [78 LRRM 2764]; Local 858 American Federation of Teachers
v. School District No. 1, Denver, Colorado (D. Colo 1970) 314
F. Supp. 1069 [74 LRRM 2385]. )
51
Nor 	can 	the 	absence 	of 	an 	express 	right 	of 	access 	in 	SEERA
lead 	to 	the 	conclusion 	that 	the 	Legislature 	intended 	to 	deny
employee 	organizations 	any 	access 	rights. 	It 	must 	be 	assumed,
and 	will 	be 	discussed 	below, 	that 	the 	Legislature 	was 	aware 	of
the 	body of 	federal 	common 	law 	which 	gave 	employee
organizations 	access 	rights 	to 	employees 	under 	the 	federal
statute 	and, 	in 	addition, 	the 	Legislature 	must 	have 	been 	aware
of 	the 	constitutional 	constraints 	upon 	limitations 	of 	free
speech 	to 	employee 	organizations 	when 	they 	drafted 	SEERA.
(See 	Tinker 	v. 	Des 	Moines, 	supra, 	393 	U.S. 	at 	514; 	Pickering
v. 	Board 	of 	Education 	(1968) 	391 	U.S. 	563, 	568; 	Los 	Angeles
Teachers 	Union 	v. 	Los 	Angeles 	City Board 	of 	Education 	(1969)
71 	Cal.2d 	55lr 	559; 	and 	compare 	ALRB 	v. 	Superior 	Court,
supra, 	16 	Cal.3d 	at 	409, 	412-413, 	416-418.)
Therefore, 	it 	is 	concluded 	that 	the 	Legislature 	intended
that 	employee 	organizations 	would 	have 	no 	fewer 	rights 	under
SEERA 	than 	they 	would 	under 	basic 	common 	law 	principles 	and
under 	the 	State 	and 	federal 	constitutions.33	. a 	(Ibid. 	and
ALRB 	v. 	_superior 	Court, 	supra, 	16 	Cal.3d 	at 	418.)
33
51
1t 	is 	not 	necessary 	to 	find 	a 	constitutional 	basis 	for
employee 	organization 	rights 	here 	since 	there 	is 	a 	statutory
right 	derived 	from 	common 	law 	principles. 	(Delaware 	Teachers
Federation 	v. 	Board 	of 	Education 	(D. 	Del. 	1971) 	335 	F.supp.
385 	[78 	LRRM 	2764]; 	Local 	858 	American 	Federation 	of 	Teachers
v. 	School 	District 	N0::-1, 	Denver, 	Colorado 	{D. 	CoT~,OT·---rr:{
F.Supp. 	1069 	[74 	LRRM 	2385] .)

3. 	The Decision of PERB in Richmond-Simi
Consistent with the above analysis is the PERB decision in
Richmond-Simi. There PERB found that the employee
organizations had rights under 3543.1(b) to use the internal
mail system of a school district since that right was provided
in the statute by the clause "other means of communication."
In Richmond it was contended that, inter alia, if the
Legislature had meant other means of communication to cover
the school mail systems, it would have specifically spelled
out a right of access to that system. Further, it was argued
that requiring an employer to open up its mail system would
require the employer to actively participate in employee
organizational activities. PERB reviewed the numerous
arguments and the existing law. It concluded that the
Legislature in providing a section of the EERA devoted to the
right of access to employee organizations did not exhaust all
the alternative ways in which an employee organization could
have access. Rather, PERB found that the Legislature set down
general guidelines and left it to the administrative agency to
determine the extent to which employee organization access
would be permitted. PERB concluded that employee
organizations should have rights to means of access which will
not be disruptive of the employer's activities. The specific
rights of access need not be expressly spelled out in the
52
3.
	The
	Decision
	of
	PERB
	in
	Richmond-Simi
Consistent
	with 	the
	above
	analysis
	is
	the
	PERB
	decision
	in
Richmond-Simi.
	There
	PERB
	found
	that
	the
	employee
organizations
	had
	rights
	under
	3543.l(b)
	to
	use
	the
	internal
mail
	system
	of
	a
	school
	district
	since
	that 	right
	was
	provided
in 	the
	statute
	by
	the 	clause 	"other
	means
	of
	communication."
In
	Richmond
	it
	was
	contended
	that, 	inter
	alia,
	if
	the
Legislature
	had
	meant
	other
	means
	of
	communication
	to
	cover
the 	school 	mail 	systems,
	it
	would 	have
	specifically
	spelled
out
	a
	right
	of 	access
	to
	that
	system.
	Further,
	it
	was
	argued
that
	requiring
	an
	employer
	to
	open
	up
	its
	mail
	system
	would
require
	the
	employer
	to
	actively 	participate
	in
	employee
organizational
	activities.
	PERB
	reviewed
	the
	numerous
arguments
	and
	the
	existing
	law.
	It
	concluded
	that
	the
Legislature
	in 	providing
	a
	section 	of 	the
	EERA
	devoted
	to
	the
right
	of 	access 	to
	employee
	organizations
	did 	not 	exhaust
	all
the
	alternative
	ways
	in
	which 	an 	employee
	organization 	could
have
	access. 	Rather,
	PERB
	found
	that
	the 	Legislature
	set
	down
general 	guidelines
	and
	left
	it
	to 	the
	administrative
	agency
	to
determine 	the 	extent 	to
	which 	employee
	organization 	access
would 	be
	permitted.
	PERB
	concluded
	that
	employee
organizations
	should 	have
	rights 	to
	means
	of 	access
	which
	will
not
	be
	disruptive 	of 	the 	employer's
	activities.
	The
	specific
rights 	of 	access 	need 	not 	expressly 	spelled 	out 	in 	the
52

statute. (ALRB v. Superior Court, supra, 16 Cal. 3d at
410-416, 417-419.)
PERB further found that public employers could reasonably
regulate access so long as the regulation was clear,
unambiguous, nondiscriminatory and subject to available
alternative means of access. (See Richmond-Simi, supra, PERB
Decision No. 99 at pp. 13-28 and Babcock and Wilcox Co. ,
supra, 351 U.S. 105 [38 LRRM 2001] .)
4. 	The State Unreasonably Attempts to Regulate Access to
Employees Through the Mail System by the
August 1, 1978 and September 5, 1978 Policy Memoranda.
Analyzing the facts of the instant case, it is 	hat
there is no reasonable alternative to use of the State mail
systems. Because employees are dispersed throughout the State
and because organizations of varying size 	ek to reach
units of varying size in an attempt to organize those State
employees in a statewide unit, there is no feasible way that
face-to-face communication or hand billing in and around the
employer's premises can be effected by many of the labor
organizations seeking to organize under SEERA. 	Thus, the only
reasonable means of communication with those employees is
through the mails.
Both the August 1, 	78 and September 5, 1978 memoranda
were premised upon the theory that the employee organizations
have absolutely no right to use the internal mail
the State. PERB has held that reasonable regulation is not
53
statute.
	(ALRB
	v.
	Superior 	Court,
	supra,
	16
	Cal.3d
	at
410-416,
	417-419.)
1,
case,
size
is
PERB
	further
	found
	that
	public
	employers
	could
	reasonably
regulate
	access
	so 	long 	as 	the
	regulation
	was
	clear,
unambiguous,
	nondiscriminatory
	and
	subject
	to
	available
alternative
	means
	of 	access.
	(See
	Richmond-Simi,
	supra,
	PERB
Decision
	No.
	99
	at
	pp. 	13-28
	and 	Babcock 	and 	Wilcox
	Co.,
supra,
	351
	U.S.
	105 	[38
	LRRM
	2001]
.)
4.
	The
	State
	Unreasonably 	Attempts
	to
	Regulate
	Access
	to
Employees 	Through
	the
	Mail 	System
	by
	the
August
	1978
	and
	September
	5,
	1978
	Policy
	Memoranda.
Analyzing
	the
	facts
	of 	the
	instant found t	
it
	is
	found
	that
there
	is
	no
	reasonable
	alternative
	to
	use
	of 	the
	State
	mail
systems.
	Because 	employees
	are 	dispersed
	throughout 	the
	State
and
	because
	organizations 	of 	varying will se
will
	seek
	to
	reach
units 	of
	varying
	size
	in
	an
	attempt
	to 	organize 	those
	State
employees
	in
	a
	statewide
	unit, 	there 	is
	no
	feasible
	way
	that
face-to-face
	communication
	or
	hand
	billing
	in
	and
	around
	the
employer's 	premises 	can
	be
	effected
	by many
	of
	the 	labor
organizations
	seeking
	to 	organize
	under
	SEERA.
	Thus,
	the 	only
reasonable
	means
	of
	communication 	with 	those
	employees
	is
through 	the 	mails.
Both
	the
	August 19	
1,
	1978 	and 	September
	5,
	1978 memoranda
were 	premised
	upon
	the 	theory
	that
	the
	employee
	organizat
have
	absolutely
	no
	right 	to
	use 	the 	systems of	r
	mail 	systems
	of
the 	State.
	PERB
	has 	held 	that 	reasonable 	regulat 	not
53

equivalent to prohibition en toto. 	(Richmond-Simi , supra,
PERB Decision No. 99 at p. 26.)
The August 1 attempt to regulate employee organization
access is an absolute prohibition. It directs departments
within Caltrans to return "personal mail and employee
organizational mail in volume. " It is clear that the August 1
regulation would have an impact only on employee
organizational mail because that was the only volume mailing
to which the focus of attention had turned in the summer of
1978. 	The mandate that the mail should not be distributed to
employees but returned to the sender would serve to deter
attempts by employee organizations to communicate by the
expensive process of use of the United States mails and
further would deprive employees of their rights to know what
organizations were soliciting their membership and what those
organizations had to offer them. 	Thus, the absolute
prohibitions of the August 1, 1978 memorandum cannot in any
way be construed to reasonable regulation of a right to
communicate with employees.
The September 5 memorandum is equally restrictive. That
memorandum was also issued in the face of a large employee
organizational campaign and organizational mail was the only
volume mailing which could be identified by the parties as one
to which the focus of the attention of the mailroom would be
directed. In addition, the September 5 memorandum is vague
54
equivalent 	to 	prohibition 	en 	toto. 	(Richmond-Simi, 	supra,
PERB 	Decision 	No. 	99 	at 	p. 	26.)
The 	August 	1 	attempt 	to 	regulate 	employee 	organization
access 	is 	an 	absolute 	prohibition. 	It 	directs 	departments
within 	Caltrans 	to 	return 	"personal 	mail 	and 	employee
organizational 	mail 	in 	volume." 	It 	is 	clear 	that 	the 	August 	1
regulation 	would 	have 	an 	impact 	only 	on 	employee
organizational 	mail 	because 	that 	was 	the 	only 	volume 	mailing
to 	which 	the 	focus 	of 	attention 	had 	turned 	in 	the 	summer 	of
1978. 	The 	mandate 	that 	the 	mail 	should 	not 	be 	distributed 	to
employees 	but 	returned 	to 	the 	sender 	would 	serve 	to 	deter
attempts 	by 	employee 	organizations 	to 	communicate 	by 	the
expensive 	process 	of 	use 	of 	the 	United 	States 	mails 	and
further 	would 	deprive 	employees 	of 	their 	rights 	to 	know 	what
organizations 	were 	soliciting 	their 	membership 	and 	what 	those
organizations 	had 	to 	offer 	them. 	Thus, 	the 	absolute
prohibitions 	of 	the 	August 	1, 	1978 	memorandum 	cannot 	in 	any
way 	be 	construed 	to 	reasonable 	regulation 	of 	a 	right 	to
communicate 	with 	employees.
The 	September 	5 memorandum 	is 	equally 	restrictive. 	That
memorandum 	was 	also 	issued 	in 	the 	face 	of 	a 	large 	employee
organizational 	campaign 	and 	organizational 	mail 	was 	the 	only
volume 	mailing 	which 	could 	be 	identified 	by 	the 	parties 	as 	one
to 	which 	of 	the 	attention 	mailroom would 	be
directed. 	In 	addition, 	the 	September 	5 memorandum 	is 	vague
54

and confusing in its terms. (See Richmond-Simi, supra, PERB
Decision No. 99, at pp. 20-26.) The vagueness and uncertainty
of the regulation points up its inherent defects. There is no
way that employee organizations could determine by what
standards departments would attempt to create a bin system and
which departments would distribute the mail to the employees.
The determination of how, when, and why a bin system should be
established were left to the sole discretion of the numerous
departments throughout the State of California. Thus,
employee organizations seeking to organize on a statewide
basis would have an insurmountable task of determining the
discretion of each administrator in the departments employing
employees sought to be regulated. (Ibid.)
Lastly, the State's attempt to regulate employee
organizational access to the State mail system has been
discriminatorily applied. As shown above, the only
identifiable organizations upon which the impact of the
memorandum of August 1 and September 5 would fall are employee
organizations with large volume mailings. 	The focus currently
is on these organizations and there indeed will be an attempt
to subject them to the limitations of the memoranda if they
are allowed to stand. There has been substantial testimony on
the record that personal mail has always been delivered and
still is being delivered to employees in the State service.
The only exception to this is found by the Department of
55
and
	confusing 	in
	its
	terms.
	{See
	Richmond-Simi,
	supra,
	PERB
Decision
	No.
	99,
	at
	pp.
	20-26.)
	The
	vagueness
	and
	uncertainty
of
	the
	regulation 	points
	up
	its
	inherent
	defects.
	There
	is
	no
way
	that
	employee
	organizations
	could 	determine
	by
	what
standards
	departments
	would
	attempt 	to
	create
	a
	bin
	system
	and
which
	departments
	would
	distribute
	the
	mail
	to
	the
	employees.
The
	determination
	of
	how,
	when, 	and
	why 	a
	bin
	system
	should
	be
established
	were
	left
	to
	the 	sole
	discretion
	of 	the
	numerous
departments 	throughout
	the
	State
	of
	California.
	Thus,
employee
	organizations
	seeking
	to
	organize
	on
	a
	statewide
basis
	would 	have 	an
	insurmountable
	task 	of
	determining
	the
discretion
	of
	each
	administrator
	in 	the
	departments
	employing
employees
	sought
	to
	be
	regulated.
	(Jbid)
Lastly,
	the
	State's
	attempt
	to 	regulate
	employee
organizational
	access
	to
	the
	State
	mail
	system 	has 	been
discriminatorily
	applied.
	As 	shown
	above,
	the 	only
identifiable
	organizations
	upon
	which
	the
	impact
	of 	the
memorandum
	of
	August
	1
	and 	September
	5 	would
	fall
	are
	employee
organizations
	with
	large
	volume
	mailings.
	The
	focus
	currently
is
	on
	these 	organizations
	and
	there
	indeed
	will
	be 	an
	attempt
to 	subject
	them
	to 	the
	limitations 	of 	the
	memoranda
	if
	they
are
	allowed
	to 	stand.
	There 	has 	been
	substantial
	testimony
	on
t	
record
	that
	per 	mail 	always 	been
	deliver
sti
	is
	being
	livered 	to
	employees 	the 	State 	service.
The
	only 	exception 	to 	this 	is
	found 	by
	the 	Department 	of
55

Developmental Services which involves health care units. 	Even
the limitations on access to employees in health care
facilities are unduly restrictive in light of recent Supreme
Court and federal court decisions expanding rights of access
in health care institutions. (See Beth Israel Hospital v.
NLRB (1978) 437 U.S. 483 [98 LRRM 2727] ; NLRB v. St. Joseph
Hospital (10th Cir., 1978) 587 F. 2d 1060 [99 LRRM 3404, 3406].)
Thus, it is found that the memoranda of August 1, 1978 and
September 5, 1978 improperly attempt to regulate rights of
employee organizations to access to the State mail system.
The memoranda violate rights of employee organizations to
communicate with their members or prospective members in an
effort to organize and represent employees under SEERA.
C. 	The Policies of Caltrans and the State Which Deter
Employee Organizations From the Use of the Mails Fall
Within the Statutory Proscriptions of Section 3519 (d) of
SEERA.
The Statutory Basis for the Right to be
Free from Domination or Interference in
the Formation or Administration of an
Employee Organization.
Section 3519 (d) makes it unlawful for the state to
dominate or interfere with the formation or administration of
any employee organization . . . or in any way encourage
employees to join any organization in preference to another.
This statutory restriction upon the State gives rise to a
correlative right to employee organizations to form and
administer their affairs free from State interference and to
56
Developmental
	Services
	which
	involves
	health
	care
	units.
	Even
the
	limitations
	on
	access
	to
	employees
	in
	health
	care
facilities
	are
	unduly
	restrictive
	in
	light
	of 	recent
	Supreme
Court
	and
	federal 	court 	decisions
	expanding
	rights
	of
	access
in 	health
	care
	institutions.
	(See
	Beth
	Israel
	Hospital
	v.
NLRB
	(1978) 	437
	U.S.
	483 	[98
	LRRM
	2727];
	NLRB
	v.
	St.
	Joseph
Hospital
	(10th
	Cir.,
	1978) 	587
	F.2d
	1060 	[99
	LRRM
	3404,
	3406]
.)
Thus,
	it
	is
	found
	that
	the
	memoranda
	of
	August
	1,
	1978 	and
September
	5,
	1978
	improperly
	attempt
	to 	regulate
	rights
	of
employee
	organizations 	to
	access 	to 	the
	State
	mail 	system.
The 	memoranda
	violate 	rights
	of
	employee
	organizations
	to
communicate
	with
	their
	members
	or 	prospective
	members
	in
	an
effort
	to 	organize
	and
	represent
	employees 	under
	SEERA.
C.
	The
	Policies 	of 	Caltrans
	and
	the
	State
	Which
	Deter
Employee
	Organizations
	From
	the
	Use
	of
	the
	Mails
	Fall
Within
	the
	Statutory 	Proscriptions 	of 	Section
	3519(d)
	of
SEERA.
1.	
1.	
The
	Statutory
	Basis 	for 	the
	Right
	to
	be
Free
	from 	Domination
	or
	Interference
	in
the
	Formation 	or 	Administration 	of
	anEmployee
	Organization.
Section
	3519(d)
	makes
	it
	unlawful 	for 	the
	state 	to
dominate
	or
	interfere
	with 	the 	formation 	or
	administration 	of
any 	employee
	organization
	...
	or 	in
	any 	way
	encourage
employees
	to 	join
	any
	organization 	preference 	to 	another.
This
	statutory 	restriction
	upon
	the 	State 	gives
	rise 	to
	a
correlative 	right 	to
	employee
	organizations 	to
	form 	and
administer 	their 	affairs 	free
	om
	State 	interference
	and
	to
56

obtain members without the State causing employees to prefer
one organization over another.
Section 3515.5 of SEERA provides that employee
organizations shall have the right to "represent their members
in their employment relations with the state . 	. " and the
right to be exclusive representative of a majority of
employees exercising their free choice for an appropriate
unit. Section 3515.5 rights to represent members and to
become an exclusive representative, coupled with the 3519 (d)
right of employee organizations to form and administer their
organizations free from inteference and domination by the
State must necessarily encompass the right to communicate with
other employees in order to organize and assemble majority
support in an appropriate unit.
As discussed above, the right to access is inherent in the
rights of employees to form, join or refrain from forming or
joining an employee organization. Similarly, the right of
access must be given to employee organizations seeking to
organize employees in order to form and administer their
organizations under SEERA. (Cf. State of New York (Office of
Employee Relations and Public Employee Federation) (1977) 10
NY PERB 3108, p. 3186.)
2. 	The August 1 and September 5 Memoranda
Interfere with the Formation of
Employee Organizations and Tend to
Encourage Employees to Favor One
Organization over Another.
57
obtain
	members
	without 	the
	State
	causing
	employees
	to
	prefer
one
	organization
	over
	another.
Section
	3515.5
	of
	SEERA
provides
	that
	employee
organizations
	shall
	have
	the
	right
	to 	"represent
	their
	members
in
	their
	employment
	relations
	with
	the
	state
	...
"
	and
	the
right
	to
	be
	exclusive
	representative
	of
	a
	majority 	of
employees
	exercising
	their
	free
	choice 	for
	an
	appropriate
unit.
	Section
	3515.5
	rights
	to 	represent
	members
	and
	to
become
	an
	exclusive
	representative,
	coupled 	with
	the
	3519(d)
right
	of
	employee
	organizations 	to
	form 	and
	administer
	their
organizations 	free
	from
	inteference
	and
	domination
	by
	the
State
	must
	necessarily
	encompass
	the
	right 	to
	communicate
	with
other
	employees
	in 	order 	to 	organize
	and
	assemble
	majority
support 	in
	an
	appropriate
	unit.
As
	discussed
	above,
	the
	right 	to
	access
	is
	inherent 	in 	the
rights
	of
	employees
	to
	form,
	join
	or
	refrain
	from
	forming
	or
joining
	an 	employee
	organization. 	Similarly,
	the
	right 	of
access
	must 	be
	given
	to
	employee
	organizations
	seeking
	to
organize
	employees
	in 	order 	to
	form 	and
	administer
	their
organizations
	under
	SEERA.
	(Cf.
	State 	of
	New
	York
	(Office
	of
Employee
	Relations
	and
	Public
	Employee
	Federation)
	(1977) 	10
NY
	PERB
	3108, 	p. 	3186.)
2.	
The 	August 	1 	and 	September 	5 Memoranda
Interfere
	with 	the 	Formation 	of
Employee
	Organizations
	and 	Tend
	toEncourage 	Employees
	to
	Favor 	One
Organization 	over 	Another.
57

It is found that the employee organizations have a right
to communicate with State employees and the right includes
reasonable access to employees. Because the units here are
statewide, the only feasible way for employee organizations to
reach every potential member is by use of the United States
mails. Due to the unavailability of home addresses, which are
confidential under State administrative policy and practice,
employee organizations must use the business address to reach
State employees by mail. 	The refusal of the State to
distribute organizational mailings impacts upon the right of
employee organizations to communicate with State employees and
thus the right to form an organization.
Further, the restriction on distribution of mail throws
the balance to larger employee organizations which have
mechanisms for oral solicitation or other direct means of
enlisting employee support. In this respect the State
encourages employees to prefer one organization over another
by virtue of the disparate access ability of a large
organization over a small one which can only rely upon the
mails. 	Conversely, the State's limitation of a restrictive
rule to "bulk or volume" mailings might have a disparate
impact favoring small organizing campaigns over large ones.
In either case, the result would be to encourage employees
to prefer the organization whose means of access was not
restricted by the Caltrans and GOER memoranda here in
58
It 	is 	found 	that 	the 	employee 	organizations 	have 	a 	right
to 	communicate 	with 	State 	employees 	and 	the 	right 	includes
reasonable 	access 	to 	employees. 	Because 	the 	units 	here 	are
statewide, 	the 	only 	feasible 	way 	for 	employee 	organizations 	to
reach 	every 	potential 	member 	is 	by 	use 	of 	the 	United 	States
mails. 	Due 	to 	the 	unavailability 	of 	home 	addresses, 	which 	are
confidential 	under 	State 	administrative 	policy 	and 	practice,
employee 	organizations 	must 	use 	the 	business 	address 	to 	reach
State 	employees 	by 	mail. 	The 	refusal 	of 	the 	State 	to
distribute 	organizational 	mailings 	impacts 	upon 	the 	right 	of
employee 	organizations 	to 	communicate 	with 	State 	employees 	and
thus 	the 	right 	to 	form 	an 	organization.
Further, 	the 	restriction 	on 	distribution 	of 	mail 	throws
the 	balance 	to 	larger 	employee 	organizations 	which 	have
mechanisms 	for 	oral 	solicitation 	or 	other 	direct 	means 	of
enlisting 	employee 	support. 	In 	this 	respect 	the 	State
encourages 	employees 	to 	prefer 	one 	organization 	over 	another
by 	virtue 	of 	the 	disparate 	access 	ability 	of 	a 	large
organization 	over 	a 	small 	one 	which 	can 	only 	rely 	upon 	the
mails. 	Conversely, 	the 	State's 	limitation 	of 	a 	restrictive
rule 	to 	"bulk 	or 	volume" 	mailings 	might 	have 	a 	disparate
impact 	favoring 	small 	organizing 	campaigns 	over 	large 	ones.
In 	either 	case, 	the 	result 	would 	be 	to 	encourage 	employees
to 	prefer 	the 	organization 	whose 	means 	of 	access 	was 	not
restricted 	by 	the 	Caltrans 	and 	GOER memoranda 	here
58

question. (See Santa Monica College Part-Time Faculty
Association CTA/NEA v. Santa Monica Community College District
(1979 ) PERB Dec. No. 103 at pp. 23-23.) In both instances
employee organizations would be improperly impeded in their
attempts to form and administer organizations and to become
the exclusive representative of their membership and of all
employees in an appropriate statewide unit.
Thus, the denial of equal access to State employees via
the United States Postal Service and State mail systems
violates rights guaranteed by section 3519 (d) of SEERA. 3
D. The Unfair Practice Violations of SEERA
The above analysis shows that the memoranda of August 1
and September 5, 1978 have resulted in some harm to employee
and employee organization rights, protected by SEERA. It is
now appropriate to refer to PERB's Oceanside-Carlsbad decision
which holds that an unfair practice violation will be
sustained if evidence in the record establishes that an
employer's conduct caused some harm to protected rights and
the employer cannot justify his conduct by operational
necessity or circumstances beyond his control, where no other
34This analysis leaves open the extent to which the State
may restrict employee organization access once an exclusive
representative has been selected and during the contract bar.
(See discussion at pp. 60 through 62 infra, and cases cited
therein. )
59
question.
	(See
	Santa
	Monica
	College 	Part-Time
	Faculty
Association
	CTA/NEA
	v.
	Santa
	Monica
	Community
	College
	District
(1979)
	PERB
	Dec.
	No. 	103
	at
	pp. 	23-23.) 	In 	both
	instances
employee
	organizations
	would 	be
	improperly
	impeded
	in
	their
attempts
	to
	form 	and
	administer
	organizations
	and
	to
	become
the
	exclusive
	representative
	of
	their
	membership 	and
	of
	all
employees
	in
	an
	appropriate 	statewide
	unit.
Thus,
	the
	denial 	of
	equal 	access
	to
	State
	employees
	via
the
	United
	States 	Postal
	Service
	and
	State
	mail
	systems
violates 	rights
	guaranteed
	by
	section
	3519(d)
	of
	SEERA.34	4
D. 	The
	Unfair
	Practice 	Violations 	of
	SEERA
The
	above
	analysis
	shows
	that
	the
	memoranda
	of
	August
	1
and
	September
	5,
	1978
	have
	resulted
	in
	some 	harm
	to
	employee
and 	employee
	organization
	rights,
	protected	
by	
SEERA.
	It
	is
now
	appropriate 	to
	refer
	to
	PERB's
	Oceanside-Carlsbad
	decision
which
	holds
	that
	an
	unfair 	practice 	violation 	will
	be
sustained
	if
	evidence 	in 	the 	record
	establishes 	that
	an
employer's 	conduct 	caused
	some 	harm
	to 	protected
	rights
	and
the
	employer
	cannot
	justify
	his
	conduct
	by
	operational
necessity
	or 	circumstances
	beyond
	his 	control,
	where 	no
	other
59
34This
	analysis 	leaves
	open
	the 	extent 	to
	which
	the
	State
may
	restrict
	employee
	organization 	access
	once 	an
	exclusive
representat
	has 	been
	selected
	and
	during 	the 	contract 	bar.
(See
	discussion
	at
	pp.
	60
	through
	62
	infra,
	and
	cases
	citedtherein.)

alternative course of action was available. (Carlsbad Unified
School District, supra, at pp. 10-11; Richmond-Simi, supra at
p. 3.)
The State has shown no operational necessity which
required the establishment of the policies articulated in the
memoranda of August 1 and September 5. Indeed, as discussed
above, the procedures by which the State sought to interrupt
the distribution of mail would have proved more costly than to
deliver employees' mail. 	The only justification for the
policies was that officials of Caltrans and GOER had concerns
about cost and efficiency which never were substantiated in
fact. 	Thus, the memoranda promulgated by Caltrans on
August 1, 1978 and by GOER on September 5, 1978 are found to
violate employee rights pursuant to section 3519 (a) of SEERA
and employee organizations' rights pursuant to section 3519 (b)
and (d) of SEERA.
V. 	THE REMEDY
A. 	Employee Rights
Having found violation of employee and employee
organizational rights, it is necessary to analyze the nature
of injuries 	stained in order to frame an appropriate
remedy. The injury to employee rights can be remedied by
ordering the State and C 	ease and desist from the
continued promulgateon an 	ment of the rules and
policies found in 	memoranda of August 1, 1978 and
60
alternative
	course
	of 	action
	was
	available.
	(Carlsbad
	Unified
School
	District,
	supra,
	at
	pp.
	10-11;
	Richmond-Simi,
	supr~
	at
p.
	3.)
The
	State
	has
	shown 	no
	operational 	necessity
	which
required
	the 	establishment 	of
	the
	policies 	articulated
	in 	the
memoranda
	of
	August
	1
	and
	September
	5. 	Indeed, 	as
	discussed
above,
	the 	procedures
	by
	which
	the
	State
	sought
	to
	interrupt
the
	distribution
	of
	mail
	would
	have
	proved
	more
	costly
	than 	to
deliver
	employees'
	mail.
	The
	only
	justification
	for 	the
policies
	was
	that
	officials
	of
	Caltrans
	and
	GOER
	had
	concerns
about
	cost
	and
	efficiency
	which
	never
	were
	substantiated
	in
fact.
	Thus,
	the
	memoranda
	promulgated	
by	
Caltrans	
on
August
	1,
	1978 	and 	by
	GOER
	on
	September
	5 	1978
	are
	found
	to
violate
	employee
	rights
	pursuant
	to 	section
	3519(a)
	of
	SEERA
and 	employee
	organizations' 	rights
	pursuant 	to
	section
	3519(b)
and 	(d)
	of
	SEERA.
V.
	THE
	REMEDY
A. 	Employee
	Rights
Having 	found
	violation 	of
	employee 	and 	employee
organizational 	rights,
	it
	is
	necessary 	to 	analyze 	the 	nature
of 	injur sus
	sustained 	in 	order 	to
	frame 	an
	appropriate
remedy. 	The
	injury 	to
	employee
	rights
	can 	be 	remedied	
by
ordering 	the 	State
	and	altrans to c	
rans 	to 	cease
	and
	desist
	from
	the
continued 	promulgation	d enforce
enforcement 	of 	the 	rules
	and
policies
	found the	
the
	memoranda
	of
	August 	1,
	1978 	and
60

September 5, 1978 and any other policy or practice which
prevents access of employees or employee organizations to
employees at their business address during an organizational
campaign. In fashioning a remedy, it is recalled that rights
of access may change once an exclusive representative has been
chosen. Thereafter, the ability to reach employees by
alternate means may permit the State to restrict the use of
its mail systems. 	Thus, a cease and desist order can
appropriately be limited to granting access during an
organizational campaign such as here, in the first instance,
or during the window period prior to the expiration of a
contract. 	(See Union Co. Regional Bd. of Education (1976)
2NJPER 50, 52, 53; State of New York and Public Employee
Federation, supra, 10 NY PERB 3108.) This cease and desist
order covering State and departmental policies as well as the
memoranda in question is necessary since the respondent has
relied on purported policies and practices to support a
restriction on the right of access. 	The State should be
ordered to cease giving effect to any policy or practice which
would restrict access to employees through United States mail
delivered to their business address. Such an order is in
accord with Government Code section 3543.5 (c) which provides
that :
(c) The board shall have the power to issue
a decision and order directing an offending
party to cease and desist from the unfair
61
September
	5,
	1978 	and 	any
	other 	policy
	or
	practice
	which
prevents
	access
	of
	employees
	or
	employee
	organizations
	to
employees
	at 	their
	business 	address 	during
	an
	organizational
campaign.
	In 	fashioning
	a
	remedy,
	it
	is
	recalled
	that 	rights
of
	access
	may
	change 	once
	an
	exclusive
	representative
	has 	been
chosen.
	Thereafter, 	the
	ability
	to
	reach
	employees
	by
alternate
	means 	may
	permit 	the
	State 	to
	restrict
	the
	use
	of
its
	mail 	systems.
	Thus,
	a
	cease
	and
	desist
	order
	can
appropriately
	be
	limited 	to 	granting
	access 	during
	an
organizational
	campaign
	such 	as
	here, 	in 	the
	first
	instance,
or 	during 	the
	window
	period
	prior
	to 	the
	expiration 	of
	a
contract.
	(See
	Union
	Co.
	Regional
	Bd.
	of
	Education
	(1976)
2NJPER
	50, 	52,
	53;
	State 	of
	New
	York
	and
	Public
	Employee
Federation, 	supra,
	10
	NY
	PERB
	3108.) 	This 	cease
	and
	desist
order 	covering
	State
	and
	departmental
	policies
	as 	well 	as 	the
memoranda
	in 	question
	is
	necessary 	since 	the 	respondent 	has
relied
	on
	purported
	policies
	and
	practices 	to
	support
	a
restriction
	on
	the
	right 	of 	access.
	The
	State
	should
	be
ordered 	to
	cease 	giving
	effect
	to
	any
	policy 	or
	practice
	which
would
	restrict
	access 	to
	employees 	through 	United
	States
	mail
delivered 	to
	their
	business 	address.
	Such 	an
	order
	is
	in
accord 	with
	Government 	Code
	section
	3543.S(c) 	which
	provides
that:
(c) 	The
	board
	shall
	have 	power
	to 	issue
a
	decision
	and
	order 	directing
	an
	offending
party 	to 	cease
	and
	desist
	om
	unfair
61

practice and to take such affirmative
action, including but not limited to the
reinstatement of employees with or without
back pay, as will effectuate the policies of
this chapter.
It is also appropriate that the State should be required
to post a copy of the Order. Posting will provide employees
with notice that the State has acted in an unlawful manner and
is being required to cease and desist from the activity. It
effectuates the purposes of SEERA that employees be informed
of the resolution of the controversy. A posting requirement
has been upheld in a California case involving the
Agricultural Labor Relations Act, Pandol and Sons v. ALRB and
UFW (1979) 98 Cal. App. 3d 580, 587. Posting orders of the NLRB
also have been upheld by the United States Supreme Court, NLRB
v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415] ;
Pennsylvania Greyhound Lines, Inc. v. NLRB (1938) 303 U.S. 261
[2 LRRM 600] .
B. Employee Organizational Rights
1. Cease and Desist Order
Similarly, a cease and desist order will remedy, in part,
the injury sustained by employee organizations who have been
deterred from communication with employees by the actions of
Caltrans and GOER. However, posting of notices at State
facilities may not be as effective a method of reaching the
various employee organizations as a direct mailing of a copy
of the Order to each organization which received copies of the
62
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or 	without
back 	pay, 	as 	will 	effectuate 	the 	policies 	of
this 	chapter.
It 	is 	also 	appropriate 	that 	the 	State 	should 	be 	required
to 	post 	a 	copy 	of 	the 	Order. 	Posting 	will 	provide 	employees
with 	notice 	that 	the 	State 	has 	acted 	in 	an 	unlawful 	manner 	and
is 	being 	required 	to 	cease 	and 	desist 	from 	the 	activity. 	It
effectuates 	the 	purposes 	of 	SEERA 	that 	employees 	be 	informed
of 	the 	resolution 	of 	the 	controversy. 	A posting 	requirement
has 	been 	upheld 	in 	a 	California 	case 	involving 	the
Agricultural 	Labor 	Relations 	Act, 	Pandol 	and 	Sons 	v. 	ALRB 	and
UFW 	(1979) 	98 	Cal.App.3d 	580, 	587. 	Posting 	orders 	of 	the 	NLRB
also 	have 	been 	upheld 	by 	the 	United 	States 	Supreme 	Court 	NLRB
v. 	Express 	Publishing 	Co. 	(1941) 	312 U.S. 	426 	[8 	LRRM 	415];
Pennsylvania 	Greyhound 	Lines, 	Inc. 	v. 	NLRB 	(1938) 	303 	U.S. 	261
[2 	LRRM 	600].
B. 	Employee 	Organizational 	Rights
1. 	Cease 	and 	Desist 	Order
Similarly, 	a 	cease 	and 	desist 	order 	will 	remedy, 	in 	part,
the 	injury 	sustained 	by 	employee 	organizations 	who 	have 	been
deterred 	from 	communication 	with 	employees 	by 	the 	actions 	of
Caltrans 	and 	GOER. 	However, 	posting 	of 	notices 	at 	State
facilities 	may 	not 	be 	as 	effective 	a 	method 	of 	reaching 	the
various 	employee 	organizations 	as 	a 	direct 	mailing 	of 	a 	copy
of 	the 	Order 	to 	each 	organization 	which 	recei 	cop 	s 	of 	the
62

memoranda of August 1 and/or September 5, 1978. This direct
communication will assure the organizations, large or small,
that they may freely have access to State employees by mailing
materials to them at their business address and that these
materials will be distributed through the State mail system
upon receipt via the U.S. mails. (See Tidee Products, Inc.
(1972) 194 NLRB No. 198 [79 LRRM 1175, 1178]; Hecks, Inc.
(1971) 191 NLRB No. 146 [77 LRRM 1513] . )
2 . 	Cost of Postage and Reproduction of
Organizational Material
In addition to the denial of the right to communicate with
employees, STAA claims that it is entitled to reimbursement
for the cost of three mailings between late May and early
July 1978. The NLRB has allowed recovery of postage as an
extraordinary remedy when an employer's unfair labor practice
has interfered with organizational solicitations with a direct
measurable cost to the organization. (See F. W. Woolworth Co.
(1975) 216 NLRB No. 155 [88 LRRM 1516, 1517] ; Paramount
Plastic Fabricators, Inc. (1971) 190 NLRB 170 [77 LRRM 1089] ;
Creutz Plating Corporation (1968) 172 NLRB No. 1 [68 LRRM
1513] .) This authority would permit the charging party to
recover postage costs and other related expenses of
solicitation if there were proof in the record of a nexus
between mailings returned to STAA by any State department in
furtherance of the policies which unlawfully denied
63
memoranda 	of 	August 	1 	and/or 	September 	5, 	1978. 	This 	direct
communication 	will 	assure 	the 	organizations, 	large 	or 	small,
that 	they 	may 	freely 	have 	access 	to 	State 	employees 	by 	mailing
materials 	to 	them 	at 	their 	business 	address 	and 	that 	these
materials 	will 	be 	distributed 	through 	the 	State 	mail 	system
upon 	receipt 	via 	the 	U.S. 	mails. 	(See 	Tidee 	Products, 	Inc.
(1972) 	194 	NLRB 	No. 	198 	[79 	LRRM 	1175, 	1178]; 	Hecks, 	Inc.
(1971) 	191 	NLRB 	No. 	146 	[77 LRRM 	1513].)
2. 	Cost 	of 	Postage 	and 	Reproduction 	of
Organizational 	Material
In 	addition 	to 	the 	denial 	of 	the 	right 	to 	communicate 	with
employees, 	STAA 	claims 	that 	it 	is 	entitled 	to 	reimbursement
for 	the 	cost 	of 	three 	mailings 	between 	late 	May 	and 	early
July 	1978. 	The 	NLRB 	has 	allowed 	recovery 	of 	postage 	as 	an
extraordinary 	remedy 	when 	an 	employer's 	unfair 	labor 	practice
has 	interfered 	with 	organizational 	solicitations 	with 	a 	direct
measurable 	cost 	to 	the 	organization. 	(See 	F. 	W. 	Woolworth 	Co
(1975) 	216 	NLRB 	No. 	155 	[88 	LRRM 	1516, 	1517]; 	Paramount
Plastic 	Fabricators, 	Inc. 	(1971) 	190 NLRB 	170 	[77 	LRRM 	1089];
Creutz 	Plating 	Corporation 	(1968) 	172 	NLRB 	No. 	1 	[68 	LRRM
1513] .) 	Th 	authority 	would 	permit 	the 	charging 	party 	to
recover 	postage 	costs 	and 	other 	related 	expenses 	of
solicitation 	if 	there 	were 	proof 	in 	the 	record 	of 	a 	nexus
between 	mailings 	returned 	to 	STAA 	by 	any 	State 	department 	in
furtherance 	of 	the 	policies 	which 	unlawfully 	denied
63

organizations or employees the right to use the State mail
distribution system. However, there is no evidence to support
an award of such damages since there is no showing that any of
the three STAA mailings were unlawfully returned or in any way
affected by the policies in question.
The record does establish that STAA incurred a $300
expense paid to an artist to prepare a prototype for a
newsletter mailer which was never used because of the
announcement of policies denying use of the State mail system
to employee organizations on or after August 1, 1978. The
newsletter was never used for its intended purposes and there
is no apparent alternative use to which it could be put to
mitigate the loss to STAA. 	Thus, it is appropriate to award
STAA the $300 expended for preparation of a prototype
organizational newsletter which could not be used because of
State policies found to be unlawful.
3. Lost Dues
STAA asks $400,000 for dues it estimates would have been
received if it had been able to obtain sufficient showing of
interest to petition for a statewide attorney unit. Such a
remedy on the facts of this case is unwarranted and, at best,
speculative.
First, the evidence shows that STAA was unable to obtain a
requisite 30 percent showing of interest after three
unfettered solicitations by mail. The promulgateon of the
64
organizations 	or 	employees 	the 	right 	to 	use 	the 	State 	mail
distribution 	system. 	However, 	there 	is 	no 	evidence 	to 	support
an 	award 	of 	such 	damages 	since 	there 	is 	no 	showing 	that 	any 	of
the 	three 	STAA mailings 	were 	unlawfully 	returned 	or 	in 	any 	way
affected 	by 	the 	policies 	in 	question.
The 	record 	does 	establish 	that 	STAA 	incurred 	a 	$300
expense 	paid 	to 	an 	artist 	to 	prepare 	a 	prototype 	for 	a
newsletter 	mailer 	which 	was 	never 	used 	because 	of 	the
announcement 	of 	policies 	denying 	use 	of 	the 	State 	mail 	system
to 	employee 	organizations 	on 	or 	after 	August 	1, 	1978. 	The
newsletter 	was 	never 	used 	for 	its 	intended 	purposes 	and 	there
is 	no 	apparent 	alternative 	use 	to 	which 	it 	could 	be 	put 	to
mitigate 	the 	loss 	to 	STAA. 	Thus, 	it 	is 	appropriate 	to 	award
STAA 	the 	$300 	expended 	for 	preparation 	of 	a 	prototype
organizational 	newsletter 	which 	could 	not 	be 	used 	because 	of
State 	policies 	found 	to 	be 	unlawful.
3. 	Lost 	Dues
STAA 	asks 	$400,000 	for 	dues 	it 	estimates 	would 	have 	been
received 	if 	it 	had 	been 	able 	to 	obtain 	sufficient 	showing 	of
interest 	to 	petition 	for 	a 	statewide 	attorney 	unit. 	Such 	a
remedy 	on 	the 	facts 	of 	this 	case 	is 	unwarranted 	and, 	at 	best,
speculative.
First, 	the 	evidence 	shows 	that 	STAA was 	unable 	to 	obtain 	a
requisite 	30 	percent 	showing 	of 	interest 	after 	ree
unfettered 	solicitations 	by 	mail. 	The 	promulgation 	of 	the
64

policies of August 1, 1978 had no bearing on the earlier
solicitations and only remote impact on any possible
solicitations which might have been attempted between
August 1, 1978 and August 31, 1978 when petitions for a unit
had to be filed with PERB. The September 5 memorandum had no
impact on any petitions for participation in the unit
determination hearings. STAA participated in those hearings
and was able to make any and all arguments in support of a
statewide unit of attorneys.
In any case, no election has taken place to determine the
exclusive representative of the unit of attorneys and hearing
officers found to be appropriate. An award of anticipated
dues as damages is inappropriate on this record. There is no
nexus shown between the unlawful conduct and the obtaining of
majority support as exclusive representative in an election
which has not yet occurred.
4. 	Attorneys' Fees
STAA also seeks an award of attorney fees. 	There is no
statutory authorization of attorneys' fees but courts have
upheld an award of attorneys' fees when the prosecution or
defense of an action is done for frivolous or malicious
reasons or when the unlawful conduct constitutes a clear and
ens v. NLRB (4th
65
policies 	of 	August 	1, 	1978 	had 	no 	bearing 	on 	the 	earlier
solicitations 	and 	only 	remote 	impact 	on 	any 	possible
solicitations 	which 	might 	have 	been 	attempted 	between
August 	1, 	1978 	and 	August 	31, 	1978 	when 	petitions 	for 	a 	unit
had 	to 	be 	filed 	with 	PERB. 	The 	September 	5 memorandum 	had 	no
impact 	on 	any 	petitions 	for 	participation 	in 	the 	unit
determination 	hearings. 	STAA participated 	in 	those 	hearings
and 	was 	able 	to 	make 	any 	and 	all 	arguments 	in 	support 	of 	a
statewide 	unit 	of 	attorneys.
In 	any 	case, 	no 	election 	has 	taken 	place 	to 	determine 	the
exclusive 	representative 	of 	the 	unit 	of 	attorneys 	and 	hearing
officers 	found 	to 	be 	appropriate. 	An 	award 	of 	anticipated
dues 	as 	damages 	is 	inappropriate 	on 	this 	record. 	There 	is 	no
nexus 	shown 	between 	the 	unlawful 	conduct 	and 	the 	obtaining 	of
majority 	support 	as 	exclusive 	representative 	in 	an 	election
which 	has 	not 	yet 	occurred.
4. 	Attorneys' 	Fees
STAA 	also 	seeks 	an 	award 	of 	attorney 	fees. 	There 	is 	no
statutory 	authorization 	of 	attorneys' 	fees 	but 	courts 	have
upheld 	an 	award 	of 	attorneys' 	fees 	when 	the 	prosecution 	or
defense 	of 	an 	action 	is 	done 	for 	frivolous 	or 	mal 	ious
reasons 	or 	when 	the 	unlawful 	conduct 	constitutes 	a 	clear 	and
flagrant violation of the law. (J. P. Stev	rant 	v 	of 	law. 	(J.P. 	Stevens 	v. 	N~RB 	(4th
65

Cir., 1980) 	F . 2d 	[103 LRRM 2221]; Tidee Products,
Inc., supra, 79 LRRM at 1176-1178; Hecks (1974) 215 NLRB No.
142 [88 LRRM 1049, 1051-1052] .)
There is no showing on the record that the policies of
GOER and Caltrans were malicious or motivated by bad faith.
Nor on this record can it be concluded that respondent had
defended this action frivolously. (Ibid.) Absent such
evidence, STAA is not entitled to attorneys' fees or other
extraordinary relief in the form of punitive damages.
Finally, there is authority for an award of attorneys'
fees in quasi-judicial proceedings under the "common fund"
doctrine, where reparations are recovered on behalf of a
group of interested parties which could be considered the
"Public as a whole. " (See Consumers Lobby Against Monopolies,
et al. v. Public Utilities Commission, Pacific Telephone and
Telegraph Co. and Toward Utility Rate Normalization v. Public
Utilities Commission, Pacific Telephone and Telegraph Co.
(1979) _Cal. 3d.)
Despite the fact there may be public benefit from a
favorable adjudication of an unfair practice case, it would be
an extreme extension of the above case law to find that a
charging party prevailing in an unfair practice case
contributes sufficiently to the public benefit to justify an
award of attorneys' fees. Thus, there will be no award of
attorneys' fees in this case.
66
Cir., 	1980) 	F.2d 	[103 	LRRM 	2221]; 	Tidee 	Products,
Inc., 	supra, 	79 	LRRM 	at 	1176-·1178; 	Hecks 	(1974) 	215 	NLRB 	No.
142 	(88 	LRRM 	1049, 	1051-1052] .)
There 	is 	no 	showing 	on 	the 	record 	that 	the 	policies 	of
GOER 	and 	Caltrans 	were 	malicious 	or 	motivated 	by 	bad 	faith.
Nor 	on 	this 	record 	can 	it 	be 	concluded 	that 	respondent 	had
defended 	this 	action 	frivolously. 	(Ibid.) 	Absent 	such
evidence, 	STAA 	is 	not 	entitled 	to 	attorneys' 	fees 	or 	other
extraordinary 	relief 	in 	the 	form 	of 	punitive 	damages.
Finally, 	there 	is 	authority 	for 	an 	award 	of 	attorneys'
fees 	in 	quasi-judicial 	proceedings 	under 	the 	"common 	fund"
doctrine, 	where 	reparations 	are 	recovered 	on 	behalf 	of 	a
group 	of 	interested 	parties 	which 	could 	be 	considered 	the
"Public 	as 	a 	whole." 	{See 	Consumers 	Lobby Against 	Monopolies,
et 	al. 	v. 	Public 	Utilities 	Commission, 	Pacific 	Telephone 	and
Telegraph 	Co. 	and 	Toward 	Utility 	Rate 	Normalization 	v. 	Public
Utilities 	Commission, 	Pacific 	Telephone 	and 	Telegraph 	Co.
(1979) 	Cal.3d.)
Despite 	the 	fact 	there 	may 	be 	public 	benefit 	from 	a
favorable 	adjudication 	of 	an 	unfair 	practice 	case, 	it 	would 	be
an 	extreme 	extension 	of 	the 	above 	case 	law 	to 	find 	that 	a
charging 	party 	prevailing 	in 	an 	unfair 	practice 	case
contributes 	sufficiently 	to 	the 	public 	benefit 	to 	justify 	an
award 	of 	attorneys' 	fees. 	Thus, 	there 	will 	be 	no 	award 	of
attorneys' 	fees 	in 	this 	case.
66

ORDER
Upon the foregoing findings of fact, conclusions of law,
and the entire record of this case, it is found that the State
has violated Government Code section 3519 (a) , (b) and (d) .
Pursuant to Government Code section 3541.5 (c) , IT IS HEREBY
ORDERED that the State of California and California Department
of Transportation shall:
A. 	CEASE AND DESIST FROM:
Enforcing and maintaining terms of the memoranda of
August 1, 1978 and September 5, 1978 and any policies which
deny State employees or employee organizations access to
employees via United States mails and their subsequent
distribution through State. departmental mail systems in order
to solicit employees to join or not join organizations prior
to certification of an exclusive representative. 	It is
further ordered that the State shall permit use of the State
mails for solicitation at such times as employee organizations
may, in the future, appropriately seek to challenge the
position of any organization hereafter certified as exclusive
representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Pay STAA $300 for the cost of preparing a
prototype mailer which could not be used because of the
unlawful conduct here in question;
67
ORDER
Upon
	the 	foregoing
	findings
	of
	fact,
	conclusions
	of
	law,
and
	the
	entire
	record
	of
	this
	case,
	it
	is
	found
	that
	the
	State
has
	violated
	Government
	Code
	section
	3519(a),
	(b) 	and
	(d).
Pursuant
	to
	Government
	Code
	section
	3541.S(c),
	IT 	IS
	HEREBY
ORDERED
	that
	the
	State
	of
	California
	and
	California
	Department
of 	Transportation
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
Enforcing
	and
	maintaining
	terms
	of
	the
	memoranda
	of
August
	1,
	1978 	and
	September
	5,
	1978 	and 	any
	policies
	which
deny
	State
	employees
	or
	employee
	organizations
	access
	to
employees
	via
	United
	States
	mails
	and
	their
	subsequent
distribution
	through
	State.
	departmental 	mail
	systems
	in 	order
to
	solicit
	employees
	to 	join
	or 	not
	join 	organizations
	prior
to
	certification
	of
	an
	exclusive
	representative.
	It
	is
further
	ordered
	that
	the
	State 	shall
	permit
	use
	of 	the
	State
mails 	for
	solicitation 	at
	such 	times 	as
	employee
	organizations
may,
	in 	the
	future, 	appropriately	
seek	
to 	challenge 	the
position 	of
	any
	organization 	hereafter
	certified
	as
	exclusive
representative.
B.
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE 	ACT:
1.
	Pay
	STAA
	$300
	for 	the 	cost 	of 	preparing
	a
prototype 	mailer
	which 	could 	not
	be 	used 	because 	of 	the
unlawful 	conduct 	here 	in 	question:
67

2. 	Within 15 days after this decision and order
becomes final prepare and post copies of the Posting Notice
attached as an appendix hereto at each of the State
departments for twenty (20) working days, in conspicuous
places including all locations where notices to employees are
customarily placed. Reasonable steps should be taken to
insure that said notices are not altered, defaced or covered
by any other material.
3. 	Prepare and mail copies of the Posting Notice to
each employee organization registered with GOER as an
"employee organization" within the meaning of section 3513 (a)
of SEERA.
4. At the end of the posting period, notify the
Sacramento Regional Director in writing of the action it has
taken to comply with this Order.
Pursuant to California Administrative Code, title 8, part
III, section 32305, this Proposed Decision and Order shall
become final on 	March 13, 1980 unless a party files a
timely statement of exceptions within twenty (20) calendar
days following the date of service of the decision. Such
statement of exceptions and supporting brief must be actually
received by the Executive Assistant to the Board at the
Headquarters office in Sacramento before the close of business
(5:00 p.m. ) on 	March 13, 1980 in order to be timely
filed. (See California Administrative Code, title 8,
68
2.
	Within
	15
	days
	after 	this
	decision
	and
	order
becomes
	final
	prepare
	and
	post
	copies
	of
	the 	Posting 	Notice
attached
	as
	an
	appendix
	hereto
	at
	each
	of
	the
	State
departments
	for
	twenty
	(20}
	working
	days, 	in
	conspicuous
places 	including
	all
	locations
	where
	notices 	to
	employees
	are
customarily 	placed.
	Reasonable
	steps
	should
	be
	taken
	to
insure
	that
	said 	notices
	are 	not
	altered,
	defaced 	or 	covered
by
	any
	other
	material.
3. 	Prepare
	and
	mail 	copies 	of 	the 	Posting 	Notice
	to
each
	employee
	organization 	registered
	with
	GOER
	as
	an
"employee
	organization" 	within 	the
	meaning
	of 	section
	3513(a)
of
	SEERA.
4.
	At
	the
	end
	of
	the 	posting 	period, 	notify
	the
Sacramento 	Regional
	Director 	in
	writing 	of
	the
	action
	it
	has
taken 	to
	comply
	with
	this
	Order.
Pursuant
	to 	California
	Administrative
	Code,
	title
	8,
	part
III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
become
	final
	on
	March
	13,
	1980
	unless
	a
	party
	files
	a
timely 	statement 	of 	exceptions 	within
	twenty
	(20)
	calendar
days
	following 	the 	date 	of 	service 	of 	the 	decision.
	Such
statement 	of 	exceptions
	and
	supporting
	brief
	must 	be
	actually
received
	by
	the 	Executive 	Assistant 	to 	the
	Board
	at
	the
Headquarters
	office
	in 	Sacramento 	before 	the 	close 	of 	business
(5:00 	p.m.) 	on 	March
	13,
	1980 	order 	to
	be
	timely
filed.
	(See
	California 	Administrative
	Code,
	title
	8,
68

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: February 22, 1980
Stephen H. Naiman
Hearing Officer
69
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: 	February
	22,
	1980
69
,	
Stephen	
a:	
Naiman
Hearing
	Officer

Appendix
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. S-CE-2-S,
State Trial Attorneys Association v. State of California,
California Department of Transportation, in which all parties.
had the right to participate, it has been found that the State
of California and the California Department of Transportation
violated the State Employer Employee Relations Act (Government
Code section 3519(a), (b) and (d)).
As a result of this conduct, we have been ordered to post
this notice and we will abide by the following:
A. CEASE AND DESIST FROM enforcing and maintaining terms
of the memoranda of August 1, 1978 and September 5, 1978
and any policies which deny State employees or employee
organizations access to employees via United States
mails and their subsequent distribution through State,
departmental mail systems in order to solicit employees
to join or not join organizations prior to certification
of an exclusive representative. 	It is further ordered
that the State shall permit use of the State mails for
solicitation at such times as employee organizations may,
in the future, appropriately seek to challenge the
position of any organization hereafter certified as
exclusive representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Pay the State Trial Attorneys Association $300 for
the cost of preparing a prototype mailer which could not
be used because of the unlawful conduct here in question;
2. Prepare and mail copies of this posting notice to
each employee organization registered with the Governor's
Office of Employee Relations as an "employee organization"
within the meaning of section 3513(a) of SEERA.
DATED : 	STATE OF CALIFORNIA, CALIFORNIA
DEPARTMENT OF TRANSPORTATION
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN
POSTED FOR 20 WORKING DAYS FROM THE DATE OF
POSTING AND MUST NOT BE DEFACED, ALTERED OR
COVERED BY ANY MATERIAL.
Appendix
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State 	of 	California
After
	a
	hearing
	in
	Unfair
	Practice
	Case
	No.
	S-CE-2-S,
State 	Trial
	Attorneys
	Association
	Vo
	State 	of 	California,
California
	Department
	of 	Transportation,
	in
	which
	all
	parties
had
	the
	right
	to
	participate,
	it
	has 	been
	found
	that
	the
	State
of
	California
	and
	the
	California
	Department
	of 	Transportation
violated
	the
	State
	Employer 	Employee
	Relations
	Act 	(Government
Code
	section
	3519
(a),
	(b) 	and
	(d))
0
As 	a
	result
	of
	this
	conduct,
	we
	have 	been
	ordered 	to 	post
this
	notice
	and
	we
	will
	abide
	by
	the 	following:
Ao
	CEASE
	AND
	DESIST
	FROM
	enforcing
	and
	maintaining
	terms
of 	the
	memoranda
	of
	August
	1,
	1978
	and
	September
	5,
	1978
and 	any
	policies
	which 	deny
	State
	employees
	or
	employee
organizations
	access 	to
	employees
	via
	United
	States
mails
	and
	their
	subsequent
	distribution
	through
	State,
departmental 	mail
	systems
	in
	order 	to
	solicit
	employees
to
	join
	or 	not
	join
	organizations
	prior
	to
	certification
of
	an
	exclusive
	representative.
	It
	is 	further
	ordered
that
	the 	State 	shall
	permit 	use
	of
	the
	State
	mails
	for
solicitation 	at
	such 	times 	as
	employee
	organizations
	may,
in
	the
	future, 	appropriately
	seek 	to 	challenge 	the
position 	of
	any
	organization hereafter
	certified
	as
exclusive 	representativeo
B.
	TAKE 	THE
	FOLLOWING
	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	ACT:
lo 	Pay
	the
	State 	Trial
	Attorneys 	Association
	$300
	for
the 	cost 	of 	preparing
	a
	prototype 	mailer
	which
	could 	not
be 	used 	because
	of 	the 	unlawful 	conduct 	here
	in 	question;
2.
	Prepare
	and
	mail 	copies
	of 	this 	posting 	notice
	toeach 	employee
	organization 	registered
	with 	the 	Governor's
Office 	of
	Employee
	Relations 	as 	an 	"employee
	organization"
within 	the
	meaning
	of 	section
	3513(a)
	of
	SEERA.
DATED: 	STATE 	OF
	CALIFORNIA, 	CALIFORNIADEPARTMENT 	OF 	TRANSPORTATION
By
By
_______________
_
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	RE~lAIN
POSTED 	FOR 	20 	WORKING 	DAYS 	FROM THE 	DATE 	OF
POSTING AND MUST 	NOT 	BE 	DEFACED, 	ALTERED 	OR
COVERED 	BY ANY MATERIAL.