Regents of University of California v. Public Employment Relations Bd.

Decision Date09 June 1986
Citation227 Cal.Rptr. 57,182 Cal.App.3d 71
CourtCalifornia Court of Appeals Court of Appeals
Parties, 124 L.R.R.M. (BNA) 3019, 32 Ed. Law Rep. 1267 The REGENTS OF the UNIVERSITY OF CALIFORNIA, Plaintiff, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, William H. WILSON and American Federation of State, County and Municipal Employees, Local 371, Real Parties in Interest. AO29706.

Donald L. Reidhaar, James N. Odle, Susan M. Thomas, University of California Berkeley, for Regents of University of California.

Dennis M. Sullivan, Gen. Counsel, Jeffrey Sloan, Asst. Gen. Counsel, Public Employment Relations Bd., Sacramento, Public Employment Relations Bd., Andrea L. Biren, San Francisco, for PERB.

Andrew Thomas Sinclair, Oakland, for Real Party in Interest Wilson.

Charles D. Hawley, Asst. Gen. Counsel, Law Dept., United States Postal Service, Washington, D.C., for amicus curiae: Regents of University of California.

RACANELLI, Presiding Judge.

For the second time we have granted a writ of review to consider the propriety of an order issued by the Public Employment Relations Board (PERB) compelling the employer, the University of California (University,) to grant an employee organization access to the University's internal mail service.

In Regents of University of California v. Public Employment Relations Board (1983) 139 Cal.App.3d 1037, 189 Cal.Rptr. 298, we set forth the salient facts in this dispute at pages 1039 and 1040 and reiterate them here for convenience:

"In 1979, William H. Wilson and Local 371 of the American Federation of State, County and Municipal Employees filed an unfair labor practice charge against the University before the PERB asserting that the University's refusal to permit the union to distribute organizational literature to the University's custodial employees through the intercampus mail system violated the rights guaranteed to employee organizations and employees under the provisions of the Higher Education Employer-Employee Relations Act (HEERA), reproduced in relevant part in the margin. 1

"The charge arose against the following background: The University maintains two operational units for its mail system at Berkeley. Mail collection and delivery for the Berkeley campus, nearby University state-wide offices and intercampus mail for the northern California campuses and laboratories are handled by the Harmon Gym facility at Berkeley. There, the outgoing mail is separated into three groups: (1) prestamped mail; (2) internal University mail for northern California; and (3) other mail.

"The prestamped mail is delivered immediately to the United States Postal Service (U.S.P.S.) without further handling by the University. Internal University mail is monitored to assure that only official business mail is involved. This nonposted mail is then sorted and delivered.

"Other mail is then taken to a second unit, denoted '2000 Carleton.' These pieces are rated, affixed with United States postage and delivered to the U.S.P.S. Senders are recharged by office or department at regular postage rates plus 25 percent.

"Incoming mail to the University from the U.S.P.S. is handled in one of two ways: mail addressed to any of some 50 sites on the Berkeley campus is delivered to the site by the U.S.P.S.; other United States mail, not so addressed, is delivered to Harmon Gym where delivery is completed by University employees.

"In summary, the only mail accepted for delivery within the University's internal mail system is either posted mail which comes to Harmon Gym from the U.S.P.S. or official University business mail. The University has adopted regulations which deny use of its internal mail system to non-University organizations or for political, commercial or social purposes. Employee organizations are expressly prohibited from using the internal mail service. Pursuant to these regulations, the University has refused to deliver mail tendered by the union relating to its organizational activities unless the mail is stamped and sent through the U.S.P.S. It is that refusal which forms the basis of the union's unfair practice charge."

Based on a solicited advisory opinion from the U.S.P.S., the University took the position that carriage by the University in its internal mail distribution system of the letters of a union seeking to represent the University's custodial employees, without payment of postage, is prohibited by the Private Express Statutes. (18 U.S.C., §§ 1693-1699, 1724; 39 U.S.C., §§ 601-606.) 2

After an appropriate hearing and administrative appeal the PERB ordered the University to allow free access to the intercampus mail system. Thereafter, we granted University's petition for a writ of review. Upon considering the University's challenge to the PERB order, we concluded that certain preliminary factual issues needed to be determined before a ruling on the order could be made. Accordingly, we remanded the matter for a determination whether the University's regulations denying union access to the internal mail system were reasonable in light of all the surrounding circumstances, including federal postal requirements. In reaching its determination, we suggested that the PERB consider (1) the University's distribution of literature through the internal mail system to disseminate an employee newsletter expressing management's views on labor-management issues; (2) the University's distribution of literature through the internal mail system soliciting charitable contributions deemed official business under the auspices of the chancellor; (3) the union's access to other means of communicating with custodial employees; and (4) the burden which would be placed on the University's internal mail system if access were provided. Most importantly, we stated that the PERB was free to consult federal law in order to determine whether the state statute may be enforced without offending federal postal regulations. (Regents of University of California v. Public Employment Relations Bd., supra, 139 Cal.App.3d at p. 1042 and fn. 5, 189 Cal.Rptr. 298.)

After a subsequent evidentiary hearing and administrative appeal, the PERB found that: (1) articles and newsletters disseminated to employees by the University via the University mail system do include management positions on issues pertinent to employer-employee relations; (2) on at least three occasions the University has allowed use of the internal mail system by non-employee organizations; (3) the union is not required to use an alternative means of communicating with employees where, as here, the University has made no showing that permitting employee organizations to have access to the internal mail system will disrupt the functioning of the University (see Richmond Unified School District (1979) 3 PERC, § 10105) and (4) there was no convincing evidence that permitting an employee organization to have access to the internal mail system would create any additional financial burden on the University. Regarding the crucial issue concerning a potential conflict with U.S. postal regulations, the PERB determined that the University's delivery of union communications falls within two "exceptions" and one "suspension" established by 18 United States Code section 1694 3 and 1696 4 and 39 Code of Federal Regulations section 320.4. 5 Accordingly the PERB again found that the University's regulation prohibiting employee organization access to its internal mail system is unreasonable within the meaning of Government Code section 3568 and ordered that the University grant the union access to the University's internal mail service.

Discussion

Preliminarily, we note that under Government Code section 3564, subdivision (c) the "findings of the board with respect to questions of fact, including ultimate facts, if supported by substantial evidence on the record considered as a whole, are conclusive." In addition, the rule is that "[u]nder established principles, PERB's construction is to be regarded with deference by a court performing the judicial functions of statutory construction, and will generally be followed unless it is clearly erroneous." (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856, 191 Cal.Rptr. 800, 663 P.2d 523; Regents of the University of California v. Public Employment Relations Bd. (1986) 177 Cal.App.3d 648, 653, 223 Cal.Rptr. 127.)

We need not address each of the three regulations upon which the PERB based its order. For the reasons stated below we are satisfied that the union's use of the University's internal mail system falls within the so-called "letters-of-the-carrier" exception as set forth in 18 United States Code section 1694 and 39 Code of Federal Regulations section 310.3, subdivision (b), and that no conflict exists between the HEERA and federal postal regulations.

As the PERB recognized, Article I, section 8, clause 7 of the United States Constitution authorizes Congress to establish "post offices and post roads." This provision of the Constitution has traditionally been construed as granting the federal government a monopoly over the delivery of mail. (Associated Third Class Mail Users v. U.S. Postal Serv. (D.C.Cir.1979) 600 F.2d 824; National Ass'n of Letter Car. v. Independent Postal Sys. (10th Cir.1972) 470 F.2d 265; Ex Parte Jackson (1877) 6 Otto 727, 96 U.S. 727, 24 L.Ed. 877.) The Private Express Statutes (39 U.S.C. §§ 601-606; 18 U.S.C. §§ 1693-1699, 1724) generally prohibit the delivery of letters along post routes by anyone other than the United States Postal Service, but establish certain statutory exceptions to the Postal Services' monopoly over the delivery of letters. Pursuant to these statutes, the United States Postal Service has developed rules permitting private carriage of letters by individuals and entities. (39 C.F.R. §§ 310, 320.)

The letters-of-the-carrier exception to the general prohibition regarding...

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