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

• Decision Date: 17 February 1983
• Citation: 139 Cal.App.3d 1037,189 Cal.Rptr. 298
• Court: California Court of Appeals Court of Appeals
• Parties: , 9 Ed. Law Rep. 328 The REGENTS OF the UNIVERSITY OF CALIFORNIA, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent. William H. WILSON, et al., Real Parties in Interest. Civ. 54414. A014446.

Page 298

189 Cal.Rptr. 298

139 Cal.App.3d 1037, 9 Ed. Law Rep. 328

The REGENTS OF the UNIVERSITY OF CALIFORNIA, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent.

William H. WILSON, et al., Real Parties in Interest.

Civ. 54414.

A014446.

Court of Appeal, First District, Division 1, California.

Feb. 17, 1983.

As Modified March 8, 1983.

Donald L. Reidhaar, James N. Odle, Susan M. Thomas, Berkeley, for petitioner.

Dennis M. Sullivan, Gen. Counsel, Jeffrey Sloan, Asst. Gen. Counsel, Elaine B. Feingold, Legal Counsel, Public Employment Relations Bd., Sacramento, for respondent.

Andrew Thomas Sinclair, Oakland, for real parties in interest.

RACANELLI, Presiding Justice.

We granted a writ of review to consider the propriety of an order issued by the Public Employment Relations Board (PERB) compelling the employer, The Regents of the University of California (University), to grant an employee organization access to the University's internal mail service. For the reasons discussed below, we remand for findings on a remaining material factual issue.

FACTS

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 inter-campus 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 inter-campus 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) pre-stamped mail; (2) internal University mail for Northern California; and (3) other mail.

The pre-stamped 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 non-posted mail is then sorted and delivered.

Other mail is taken to a second unit, denoted "2000 Carleton." These pieces are rated, affixed with U.S. 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 U.S. 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.

After a hearing, the PERB hearing officer issued a written decision in favor of the union. Upon the University's appeal to the board, the PERB essentially affirmed the hearing officer's decision and ordered the University to allow free access to the intercampus mail system. ² The University then petitioned for review of the order.

I

Section 3568 of the Government Code grants to employee organizations the "right to use institutional bulletin boards, mailboxes and other means of communication ..." (emphasis added), the exercise of which is expressly "[s]ubject to reasonable regulations."

The University's regulations prohibit the use of the University's internal mail system by non-University groups or for non-business purposes and, as previously mentioned, expressly deny access to employee organizations. These regulations were promulgated by the University in an effort to comply with federal postal laws and regulations, which, in effect, prohibit private conveyance of mail over any established U.S.P.S. route. (18 U.S.C., §§ 1693-1699, 1724; 39 U.S.C. §§ 601-606; 39 C.F.R. §§ 310, 320.) ³ An advisory opinion rendered by the Assistant General Counsel of U.S.P.S. concludes 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 [federal] Private Express Statutes." Of course, such an official interpretation by the federal agency itself, while not controlling, is entitled to great deference. (Udall v. Tallman (1965) 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616; see also Wilkinson v. Worker's Comp. Appeals Bd. (1975) 19 Cal.3d 491, 501, 138 Cal.Rptr. 696, 564 P.2d 848.)

The University's chief complaint is that PERB failed to consider the Hobsonian choice confronting the University: if it were to grant the union access to its internal mail system under the union's interpretation of the HEERA provisions, it runs the risk of violating federal postal laws. With implicit reliance upon ARTICLE III, SECTION 3.5 OF THE CALIFORNIA CONSTITUTION⁴, the hearing officer as well as the PERB concluded that the latter was powerless to resolve the apparent conflict between the HEERA provisions and the federal postal laws and regulations. The recently enacted constitutional proviso, adopted by the electorate in apparent response to the majority holding in Southern Pac. Transportation Co. v. Public Utilities Com. (1976) 18 Cal.3d 308, 134 Cal.Rptr. 189, 556 P.2d 289 (see Official Ballot Arguments, Proposition 5, June 1978 primary election), explicitly precludes any administrative agency (which by definition includes the PERB) from declaring a statute unenforceable or refusing to enforce a statute on grounds of federal prohibition in the absence of a reviewing court's antecedent determination. (See generally Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638, 669, fn. 18, 153 Cal.Rptr. 802, 592 P.2d 289 see also Lewis-Westco & Co. v. Alcoholic Bev. etc. Appeals Bd. (1982) 136 Cal.App.3d 829, 840, fn. 12, 186 Cal.Rptr. 552; Fenske v. Board of Administration (1980) 103 Cal.App.3d 590, 595, 163 Cal.Rptr. 182.) In view of such constitutional compulsion, we agree that the PERB properly declined to decide the question whether the claimed statutory right to use the internal mail system is unenforceable by reason of preemptive federal postal law. Unquestionably, that decision rests solely within the province of the judiciary (Fenske v. Board of Administration, supra, at p. 595, 163 Cal.Rptr. 182) and in this instance within the jurisdiction of an appellate court. (Cal. Const., art. III, § 3.5(c).)

But because we believe a threshold issue remains to be decided, i.e., whether the state statute (Gov.Code, § 3568) and the federal postal laws and regulations can be harmonized, the unsettled question of conflicting legislation is presented prematurely and consequently need not now be reached. As noted, the right granted under HEERA to use institutional mailboxes for union purposes is subject to "reasonable regulations." (Gov.Code, § 3568.) Thus, a factual...