Long Beach Unified School District (PERB 0721EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEACHERS ASSOCIATION OF LONG BEACH,
Charging 	Party,
v.
LONG BEACH UNIFIED SCHOOL DISTRICT,
Respondent.
)
Case No. 	LA-CE-1151
Request 	for Reconsideration
PERB 	Decision No. 	721
PERB Decision No. 	721a
June 	6, 	1989
)
)
)
)
)
)
)
)
Appearances: 	California Teachers Association by A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for Teachers Association of Long Beach;
McLaughlin & Irvin by Lawrence J. 	McLaughlin, 	Attorney, 	for Long
Beach 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Craib, 	Shank and Camilli, 	Members.
DECISION
Camilli, 	Member: 	The Teachers Association of Long Beach
requests 	reconsideration of Decision No. 	721, 	issued by the
Public 	Employment Relations 	Board 	(PERB or Board) 	on March 	3,
1989. 	Having duly 	considered the 	request 	for reconsideration,
the 	Board 	itself 	hereby denies 	the 	request 	for the 	reasons 	that
follow.
Pursuant to PERB Regulation 32410(a), 	the grounds 	for
requesting 	reconsideration 	are 	limited 	to
. 	. 	. 	claims that the decision of the Board
itself 	contains prejudicial 	errors 	of 	fact,
or 	newly discovered 	evidence 	or 	law which was
not previously 	available 	and 	could 	not have
been discovered with 	the 	exercise of
reasonable diligence.
This 	request 	for reconsideration consists 	of 	assertions 	that
the 	Board made prejudicial 	errors 	of 	law, 	decided an 	issue 	not
raised by the parties, 	and 	failed to address 	the 	issue regarding
e

the 	reasonableness 	of 	the 	employer's 	regulations 	governing 	the
internal mail 	service. 	As 	these assertions 	do not meet the
standards 	set forth in PERB Regulation 32410(a), 	the
reconsideration request must 	be denied.
ORDER
The request 	for reconsideration of PERB Decision No. 	721
(Case No. 	LA-CE-1151) 	is hereby DENIED.
Member 	Shank 	joined 	in this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	3.
Member Craib's 	concurrence begins 	on page 	8.
2
2

Hesse, 	Chairperson, 	concurring: 	While I agree with the
majority that 	the request 	for reconsideration 	should be denied, 	I
would 	address 	each of 	the 	arguments 	raised by 	the 	Teachers
Association of 	Long Beach 	(TALB or Association) 	in its 	request
for 	reconsideration.
The Association asserts 	that 	the 	Public 	Employment 	Relations
Board 	(PERB 	or Board) 	misread the decision by the 	United 	States
(U.S.) 	Supreme Court 	in Regents 	of 	the University of California
v. 	Public Employmen	- 	t Relations Board 	(1988) 	485 	U.S. 	[99
L.Ed.2d 	664] 	(Regents) 	by: 	(1) 	failing to consider the
Association's 	status as an exclusive representative; 	(2) 	failing
to consider the content of the TALB newsletters; 	and 	(3) 	failing
to 	consider the 	exceptions 	available to the Association by
limiting 	its 	discussion to 	only the Letters 	of 	the Carrier and
Private 	Hands 	Without Compensation exceptions. 	The Association
also 	argues 	that 	the 	Board distorted 	the 	definition of
"newspaper" at 66 C.J.S., 	Newspaper, 	section 1, page 22, 	and
ignored the footnote to 39 C.F.R, 	section 310.1(a)(7), 	which
states 	that 	if 	there 	is 	any question whether the material may
properly be 	excluded by definition, 	then the material 	falls
within the 	exceptions 	to the Private Express 	Statutes. 	Finally,
the Association asserts 	that 	the Board decided the 	status 	of 	the
TALB 	newsletter under the Private 	Express 	Statutes, 	and 	failed 	to
decide 	the 	reasonableness 	of 	the 	Long Beach Unified 	School
District's 	(District) 	internal mail regulations.
33

- -
The Association's 	argument 	that 	the 	Board misread,
misinterpreted or misapplied Regents 	is without merit. 	The
Regents 	case does 	not 	constitute 	"newly discovered 	evidence 	or
- -
law." 	At 	the 	time 	the 	administrative 	law 	judge 	issued his
proposed decision, 	the U.S. 	Supreme Court had not rendered 	its
decision in Regents. 	However, 	the parties were well aware of the
significance of 	Regents 	to 	their 	case and addressed this 	issue 	in
their post-hearing briefs. 	As 	the 	Regents 	decision was 	final
before the Board rendered 	its decision in PERB Decision No. 	721,
the Board considered Regents 	in its 	disposition of 	this 	case.1
The 	fact 	that 	the Association disagrees with the 	Board's
application of 	Regents 	to 	their 	case does 	not 	constitute 	grounds
for 	granting 	reconsideration.
Notwithstanding the 	fact 	that 	the Association has 	not 	stated
any grounds 	for reconsideration, 	the Association's 	reading of
Regents 	is 	inaccurate. 	The Board, 	in University of California at
Berkeley 	(Wilson) 	(1984) 	PERB Decision No. 	420-H, 	held that
access 	rights 	of 	employee organizations 	are 	statutory
irrespective of whether the 	employee 	organization 	is 	the
exclusive or non-exclusive representative. 	(Id. 	at pp. 	2 7-2 8,
32.) 	Based on the Board's holding, 	the U.S. 	Supreme Court did
not 	differentiate 	between 	an 	exclusive 	and 	non-exclusive
representative 	in 	its 	discussion of 	the Letters 	of 	the 	Carrier
1Although the Association requested 	to brief 	the 	application
of 	Regents 	before 	the Board 	issued 	its 	decision, 	PERB denied this
- -	request 	and 	stated 	that 	no 	additional 	briefing would 	be
permitted.
44

exception. 	Thus, 	the decision encompasses the use of 	internal
mail 	systems 	by both 	exclusive 	and 	non-exclusive 	representatives.
Even 	so, 	the TALB newsletter clearly contains 	the 	current
business 	of only the Association 	(i.e., 	upcoming events,
including elections, 	meetings, 	and membership campaign, 	and
updates 	on negotiations, 	unfair practice charge hearings, 	and
legislative bills). 	The fact that the Association is the
exclusive 	representative does 	not mean that 	its 	business 	also
constitutes 	the District's business. 	Even if the TALB
newsletters 	constituted the current business of the District, 	the
Letters 	of 	the Carrier exception also requires 	that 	the 	letters
are 	sent by 	or addressed to 	the person carrying them. 	As 	the
District 	is 	carrying the Association's 	newsletter 	through 	the
District's 	internal mail 	system, 	this 	condition is 	not 	satisfied.
As 	neither condition of 	the Letters 	of Carrier exception 	is
satisfied, 	the Association's argument must 	fail. 	Finally,
contrary to the Association's 	argument, 	the Board, 	in its
determination that 	the newsletters 	were 	letters 	under 	the 	Private
Express 	Statutes, 	considered the content of the TALB newsletter
and 	other applicable 	exceptions 	under 	the 	Private 	Express
Statutes.
The Association next 	argues 	that 	the 	Board distorted 	the
definition of 	"newspaper" 	and 	ignored a 	footnote 	in the postal
regulations. 	In its decision, 	the Board considered different
sources 	to help define the terms 	"newspaper" 	and 	"periodical."
No one definition was 	conclusive. 	Rather, 	the Board looked to
55

the common characteristics 	in the various definitions. 	Further,
the Board accurately quoted the definition of 	"newspaper" 	at 	66
C.J.S., Newspaper, 	section 1, page 22.
The 	footnote 	referred to 	by the Association at 	39 	C.F.R,
section 310.1(a)(7) 	states:
Several 	of 	the 	items 	enumerated 	in this
paragraph 	(a)(7) 	do not 	self-evidently lie
outside the definition of 	"letter". 	To the
extent, 	however, 	that there is any question
whether 	these 	items 	may properly be 	excluded
by definition, 	the Postal 	Service has
determined by 	adoption of 	these 	regulations
that 	the restrictions 	of 	the Private Express
Statutes 	are suspended pursuant to 3 9 U.S.C.
601(b).
As 	the Board 	found that the TALB 	newsletter was 	not 	a 	"newspaper"
or 	"periodical," 	but, 	rather, 	a 	"letter" 	under the postal
regulations, 	the above-quoted footnote is 	inapplicable.
Additionally, 	the Association's 	argument 	that 	the 	newsletter
falls 	under the 	second-class 	mail 	definition of 	"newspapers 	and
other periodical publications" 	is not dispositive. 	The 	fact that
the materials 	may be 	sent by 	second-class 	mail does 	not mean that
they 	fall within an exception to the Private Express 	Statutes.
Finally, 	the Association's 	argument that the 	Board decided
the 	status 	of 	the TALB newsletter under the 	Private 	Express
Statutes, 	and 	failed to decide the reasonableness 	of 	the
District's 	internal mail regulations 	is without merit. 	In
response 	to 	the Association's 	argument that 	the 	status 	of 	the
TALB 	newsletter under the 	Private 	Express 	Statutes was 	not
litigated and that the Association was 	denied due process, 	the
Board notes 	that 	this 	issue was 	addressed by both parties 	in
6

their post-hearing briefs, 	and that 	this 	issue was 	evident by the
District's 	amended regulations, 	as well as 	the amended complaint
and answer. 	The 	District's 	regulations 	permit 	the 	distribution
of 	only 	the 	TALB 	newsletter through 	the 	District's 	internal 	mail
system, 	and 	the 	record reveals 	that 	the Association used the
District's 	internal 	mail 	system only 	to 	distribute 	its
newsletter. 	The 	Board 	found that 	the 	TALB 	newsletter constituted
a 	"letter" 	under the Private Express 	Statutes, 	and that no
exceptions 	permitted 	the 	District 	to 	carry 	the 	newsletter through
the 	District's 	internal 	mail 	system. 	As 	the Board held 	that 	the
TALB 	newsletter 	could not 	be 	distributed 	through 	the 	District's
internal mail 	system, 	the Board did not need to address 	the
reasonableness 	of 	the District's 	regulations 	as 	applied to 	the
TALB newsletter. 	Accordingly, 	the Board dismissed the 	complaint.
7
1

Member Craib, 	concurring: 	Though I 	continue to adhere to
the points 	raised 	in my dissenting 	opinion 	in PERB 	Decision
No. 	721, 	I concur in the denial of the request for
reconsideration of 	that decision. 	Given my 	fundamental
disagreement with the majority's analysis 	in Decision No. 	721, 	I
am not unsympathetic 	to 	some 	of the arguments 	made 	in the
reconsideration request. 	However, 	pursuant to PERB Regulation
32410(a), 	the proper grounds 	for reconsideration are limited to
"prejudicial 	errors 	of 	fact, 	or newly discovered evidence or 	law
. 	. 	. 	. " 	Here, 	the request for reconsideration consists solely
of 	assertions 	that the Board made 	numerous 	errors 	of 	law.
Therefore, 	the request may appropriately be denied.
8
8