Conejo Valley Unified School District (PERB 2054E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED ASSOCIATION OF CONEJO
TEACHERS,
Charging Party,
V.
CONEJO VALLEY UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5000-E
PERB Decision No. 2054
July 27, 2009
Appearances: California Teachers Association by Michael D. Hersh, Staff Counsel, for United
Association o f Conejo Teachers; Liebert Cassidy Whitmore by Didier Y. Reiss, Attorney, for
Conejo Valley Unified School District.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
NEUW ALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the United Association of Conejo Teachers (Association) of a
Board agent's dismissal of an unfair practice charge. The charge alleges that the Conejo
Valley Unified School District (District) violated the Educational Employment Relations Act
(EERA) 1 by prohibiting the distribution of union newsletters containing information on the
union's political recommendations in District mailboxes.
The Board reviewed the entire record, including the unfair practice charge, the warning
and dismissal letters, the Association's appeal and the District's response. Based on this
review, the Board affirms the Board agent's dismissal of the unfair practice charge.
1EERA is codified at Government Code section 3540, et seq.

On September 8, 2006, the Association attempted to place a newsletter, created entirely
at its own expense, into District-owned mailboxes affixed to the walls inside various school
sites in the District. The newsletter contained updates on bargaining, Association activities,
and school programs as well as a list of Association recommended candidates for the District
school board and an endorsement of a particular candidate for California governor.
Specifically, page one of the Association's newsletter included an endorsement of
Phil Angelides for Governor. Page three of the newsletter announced the Association Rep
Council's "unanimous vote to accept Tim Stephens, Pat Phelps, and John Short as
recommended candidates" for the District's governing board. The newsletter explained that it
made this endorsement of the candidates on the basis of a recommendation from the
Association's interview committee which met with the candidates. The newsletter also
mentioned certain characteristics of the recommended candidates, such as "demonstrated
support for employees." The newsletter did not list the names or qualifications of any other
candidates for the District's governing board.
The District superintendent prohibited the Association from using District mailboxes t
distribute the newsletter because it contained political materials. The District issued a follow
up letter referring to Education Code section 7054, subdivision (a) and stating that "school
districts may not allow their mailboxes or mail systems to be used to send out materials in
support of or in opposition to a political candidate or ballot measure."
o
The Association filed an unfair practice charge on September 27, 2006. On October 23,
2006, the Board agent issued a warning letter. The Association did not amend its unfair
practice charge and, subsequently, the Board agent dismissed the unfair practice charge.
2

AND DISMISSAL LETTERS
The Board agent dismissed the unfair practice charge because the Association failed to
demonstrate a prima facie case. Relying on San Leandro Unified School District (2005) PERB
Decision No. 1772 (SLUSD) and San Diego Community College District (2001) PERB
Decision No. 1467 (San Diego), the Board agent rejected the Association's argument that
Education Code section 7054, subdivision (a) is not controlling because mailboxes are not
"services, supplies, or equipment" as the boxes are permanent fixtures to the building walls
and do not require specialized maintenance or service.
ASSOCIATION'S APPEAL
On appeal, the Association argues that the Board agent erred in dismissing the unfair
practice charge. The Association requests the Board to reconsider and reverse its decisions in
SLUSD and San Diego. The Association contends that Education Code section 7054,
subdivision (a) does not preempt a union's right to utilize school mailboxes pursuant to EERA
section 3543 .1, subdivision (b ). Specifically:
1) 	A union informing members of its political recommendations
in a union newsletter placed in a school mailbox is not a
prohibited use of a school district's "funds, services, supplies or
equipment;"
2) 	A union newsletter with political information placed in
District mailboxes is not a District expenditure prohibited by
Section 7054.
3) 	When a school district bars use of school mail boxes to
distribute union newsletters informing members of the union's
political recommendations, or other political material, the
employees' and Association's rights of free association and free
speech, protected by Article 1, section 2 and section 3 of the
California Constitution and the First Amendment of the
Constitution of the United States have been violated.
3

DISTRICT'S OPPOSITION
The District requests the Board affirm the dismissal because Education Code
section 7054, subdivision (a) prohibits the use of District funds, services, supplies or
equipment that urge the support or defeat of political candidates or ballot measures. The
District argues that the Board correctly decided SLUSD and San Diego and, as such, should not
be overturned. The District also argues that the newsletter's purpose was to urge the members
to provide electoral support to the Association's recommended candidates as evidenced by the
newsletter not offering a balanced overview of qualifications of the candidates or even list the
names of any of the other candidates. The District further argues that EERA entitles districts
to restrict a union's access to District mailboxes as long as such restrictions are reasonable.
DISCUSSION
Association contends that the District unlawfully interfered with Association
activity by preventing distribution of the newsletters. The test for whether a respondent has
interfered with the rights of employees under the EERA does not require that unlawful motive
be established, only that at least slight harm to employee rights results from the conduct.
(Service Employees International Union, Local 99 (Kimmett) (1997) PERB Decision No. 106.)
In evaluating the Association's interference allegation, Education Code section 7054,
subdivision (a) must be considered. Education Code section 7054, subdivision (a) states:
No school district or community college district funds, services,
supplies, or equipment shall be used for the purpose of urging the
support or defeat of any ballot measure or candidate, including,
but not limited to, any candidate for election to the governing
board of the district.
4
The Board held that it was not unlawful interference for a school district to prevent the
distribution of a union newsletter containing political endorsements in the school district

mailbox because such material is prohibited by Education Code section 7054, subdivision (a).
(SLUSD; San Diego.)
The Association argues that the purpose
of
Education Code section 7054,
subdivision (a) is more modest than that which the Board read into it in San Diego and SLUSD:
(1) the legislative history indicates that Education Code section 7054, subdivision (a)
"was
intended to bar the misuse
of
public monies by a school district [as opposed to an
Associations,] to influence ballot measures and political races in a partisan manner," and (2)
school mailboxes are not equipment. 	Additionally, the Association argues that the prohibitio n
violates the constitutional right
of
free speech
of
its members and the Association. 	The
Board's reasoning in San Diego and SLUSD, however, was recently affirmed by the Californi a
Supreme Court in San Leandro Teachers Assn.
v.
Governing
Bd.
of
San Leandro Unified
School District (2009) 46 Cal.4 th 822 (San Leandro
).2
The issue in San Leandro was whether a school district could prohibit a union from
using the district's mail system to distribute political literature. 	The district assertedthat it
could prohibit political literature under Education Code section 7054, subdivision (a). 	The
California Supreme Court agreed. 	The Court found "that the broad term'equipment' [in
Education Code section 7054] was intended to encompass mailboxes specially constructed at
taxpayer expense to serve as a school's internal communication channel, which one group may
not use to its exclusive political advantage." The Court further held that
"a rule prohibiting
candidate endorsement literature in school mailboxes is a 'reasonable regulation' within the
meaning
of
[EERA] section 3543.1, subdivision (b) because it enforces the directive
of
section 7054." Therefore, the Association's argument is rejected.
We note that San Leandro is not an appeal of SLUSD, but rather a separate and distinct
case.
5

Next, the Association argues that it was simply "informing" members. 	Specifically:
key function of an internal union publication is to inform
represented employees of actions taken by the union and its
committees, officers and activists. Represented employees have a
right to know how dues and agency fees are being utilized.
Represented employees have a right to know what statements or
decisions the union has taken on their behalf.
The newsletter here merely explained the Association's
recommendation process, and the basis for the Association's
recommendation. It did not urge employees to support the
recommended candidates, nor oppose other candidates.
Employees receiving this newsletter might have as easily decided
to voice objections to the recommendations or passively accept
the information, as to take any action in support of the
recommendations. Because the newsletter did not urge support of
candidates, the prohibitions in Section 7054 [were] not
applicable.
The Association, however, was not informing members, but rather advocating on behalf of the
candidates. The newsletter stated that "[t]he committee found that each one would bring
his/her own special knowledge, experience, and qualities to the position that would complete a
strong and qualified school board for all of the constituents of the Conejo Valley Unified
School District." Further, the charge states that the purpose of the Association's newsletter
was "to inform its members that it had endorsed candidates for the gubernatorial and school
board elections." In this case, we find that the recommendation was the same as an
endorsement and, therefore, is prohibited by Education Code section 7054, subdivision (a).
The unfair practice charge in Case No. LA-CE-5000-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
ORDER
Acting Chair Dowdin Calvillo and Member McKeag joined in this Decision.
6