REGENTS OF THE UNIVERSITY OF CALIFORNIA, APPELLANT V. PUBLIC EMPLOYMENT RELATIONS BOARD, ET AL. No. 86-935 In the Supreme Court of the United States October Term, 1987 On Appeal From The California Court Of Appeal, First Appellate District BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT TABLE OF CONTENTS Question Presented Interest of the United States Statement Summary of argument Argument: Carriage in a university's internal mail system of unstamped mail from a labor union to university custodial employees violates the Private Express Statutes A. The Private Express Statutes generally bar the carriage of letters by parties other than the Postal Service in order to protect Postal Service revenues B. The letters-of-the-carrier exception does not authorize the University to deliver the Union's letters to university employees C. Neither the exception for "private hands without compensation" nor the suspension for "college and university organizations" authorizes the carriage at issue Conclusion QUESTION PRESENTED Whether the delivery by a university of unstamped mail from a labor union to university employees violates the Private Express Statutes. INTEREST OF THE UNITED STATES The Private Express Statutes grant the United States Postal Service a monopoly on the carriage of letters. The long-standing postal monopoly protects the Postal Service's ability to service all parts of the country efficiently and at low cost by preventing private carriers from competing selectively with the Postal Service on its most profitable routes. The Private Express Statutes contain limited exceptions, including an exception that permits an organization to carry such letters "as relate * * * to the current business of the carrier" (18 U.S.C. 1694). The court below concluded, contrary to a Postal Service advisory opinion, that this exception permits a university to deliver through its internal mail system unstamped letters from a labor union to the university's custodial employees. The United States has an interest in this case for two reasons. First, the outcome depends on the correctness of the interpretation accorded to the Private Express Statutes by the United States Postal Service, the agency charged by Congress with those statutes' implementation. Second, the effect of the decision below, if adopted nationwide, would be to diminish substantially the scope of the postal monopoly, resulting in increased cost to the public or a less efficient postal system. At this Court's invitation, the United States previously filed a brief in this case urging that the Court note probable jurisdiction and reverse the judgment below. STATEMENT 1. In 1979 the American Federation of State, County, and Municipal Employees (the Union), one of the two appellees, filed an unfair labor practice charge against appellant, the Regents of the University of California. The gravamen of this charge was that the University of California at Berkeley had refused to permit the Union to use the internal campus mail system to send unstamped Union letters to the University's custodial employees at their places of work (J.S. App. A2). The Union contended that this refusal to deliver its letters violated its right of access to the employer's "means of communication" under the California Higher Education Employer-employee Relations Act, Cal. Gov't Code Sections 3568, 3571 (West 1980) (reprinted in J.S. App. A115). The University declined to deliver the Union's letters because it believed that such delivery would violate the Private Express Statutes (18 U.S.C. 1693-1699; 39 U.S.C. 601-606). These statutes generally prohibit the carriage of letters over post routes without payment of the postage that would be required if the letters were carried by the United States Postal Service. /1/ In operating its internal system for delivery of unstamped campus mail, the University relies on a statutory exception to the Private Express Statutes for so-called "letters of the carrier" (18 U.S.C. 1694, 39 C.F.R. 310.3(b) (reprinted in J.S. App. A100, 110)), supplemented by a regulatory suspension of those statutes' operation "for certain letters of college and university organizations" (39 C.F.R. 320.4 (reprinted in J.S. App. A114)). /2/ The Postal Service, however, informed the University in an advisory opinion (see 39 C.F.R. 310.6) that neither the letters-of-the-carrier exception nor the suspension for letters of university organizations would permit the University to deliver unstamped mail from the Union to custodial employees. In its advisory opinion (J.S. App. A66-A75), the Postal Service explained that the letters-of-the-carrier exception "permits an employer to deliver his own letters on his own current business." This exception would authorize delivery of unstamped employee mail, the Postal Service advised, only if such letters were "sent by or addressed to members of the staff or faculty in their official capacity as representatives of the employer University." Id. at A72, A73. The opinion cited prior Postal Service opinions which had concluded that a school board's carriage of letters from a labor union to school district employees would not qualify for the letters-of-the-carrier exception. This conclusion was based on the fact that union letters to employees "can in no sense be regarded as sent by or addressed to the carrier-District," and that such letters in any event "do not relate to the current business of the school board (the carrier), but, rather, to the current business of the unions with which the board deals" (id. at A73). The Postal Service similarly concluded that the letters-of-the-carrier exception would not cover the University's delivery of the Union's mail here (id. at A74). The Postal Service's opinion further advised that the regulatory suspension for college and university organizations was likewise unavailable (J.S. App. A74-A75). "Th(at) suspension," the Postal Service explained, "was intended to cover the letters of student and faculty organizations which serve the campus community but which technically are not a part of the university itself, and, therefore, are not eligible" for the letters-of-the-carrier exception (id. at A74). The Postal Service concluded that a labor union seeking to represent a University's custodial workers "is neither a student nor a faculty organization" (id. at A75). Finally, the opinion letter advised that the statutory exception for carriage by "private hands without compensation" (18 U.S.C. 1696(c), 39 C.F.R. 310.3(c) (reprinted in J.S. App. A101, A110)) could not be construed to apply. Since the Union and the University dealt with each other at arm's length, the Postal Service concluded that "the carriage contemplated here is in no sense a gratuitous act" (J.S. App. A72). 2. In response to the University's refusal to deliver its unstamped mail, the Union filed an unfair labor practice charge with the California Public Employment Relations Board, also an appellee here. The Board ruled that the University must permit the Union to use the campus mail system without payment of postage, notwithstanding the Postal Service's advisory opinion (J.S. App. A14-A47). The Board first concluded that Section 3568 of the California Government Code requires state universities to provide access to their internal mail systems free of charge to unions representing or seeking to represent university employees (J.S. App. A18-A20). The Board then held that the University had no reasonable basis for denying such access, rejecting its argument "that federal postal statutes and its regulations prohibit it from carrying unstamped (union) materials" (id. at A25). The Board asserted that the Postal Service had given the letters-of-the-carrier exception too narrow a reading (id. at A38), stating that the exception should apply whenever a letter concerns the "business" of the carrier, a term that the Board construed broadly to include any matters affecting the University's labor relations (id. at A38-A39). The Board alternatively ruled that the "private hands without compensation" exception to the Private Express Statutes would authorize the carriage here (id. at A27-A36). It also concluded that the regulatory suspension for letters of student and faculty organizations would be constitutionally suspect if it were not construed to authorize the same result (id. at A42-A43). /3/ The California court of appeal affirmed the Board's order, rejecting the University's argument that the carriage in question "is prohibited by the Private Express Statutes," and holding "that no conflict exists between the (California statute) and federal postal regulations" (J.S. App. A4, A7). The court accepted the Board's conclusion (see id. at A6) that California Government Code Section 3568 required the University to deliver the Union's mail free of charge. The court then held that such carriage was authorized by the letters-of-the-carrier exception; it therefore found no need to address the alternative grounds on which the Board had based its decision (id. at A6-A7). Ignoring the Postal Service's opinion that the letters-of-the-carrier exception applies only to letters sent by or addressed to employees in their capacity as representatives or agents of the employer, the court deemed it sufficient that a letter be sent to the employee "in his or her capacity as an employee" and that it relate to the "current business" of the employer-carrier (J.S. App. A8-A9). The court then held that the Union's letters to University employees related to the "current business of the carrier" as that term is defined in 18 U.S.C. 1694, reasoning that California law aims to foster "harmonious labor relations" between state universities and their workers (J.S. App. A10-A11). The California Supreme Court denied the University's petition for review, Justice Lucas dissenting (J.S. App. A13). SUMMARY OF ARGUMENT The Private Express Statutes establish the longstanding postal monopoly. Since Congress has determined that the Postal Service should serve all parts of the country and that the cost of mailing a first-class letter should not vary depending on how far the letter must travel, the postal monopoly is necessary to prevent other carriers from selectively competing with the Postal Service on its most profitable routes. If other carriers could "skim the cream" by competing with the Postal Service only in urban areas, postal revenues would decrease and the cost of sending letters through the Postal Service would most likely rise. While Congress has authorized exceptions from the reach of the Private Express Statutes, and the Postal Service has suspended their operation in a limited number of circumstances, broad interpretations of those exceptions and suspensions could significantly reduce postal revenues. The decisions below would authorize carriage of a large number of letters outside the mails, thus eroding the postal monopoly substantially. The "letters of the carrier" exception does not authorize carriage by the University of the Union's letters. The Postal Service, following a construction of the Private Express Statutes by the Attorney General that Congress endorsed in 1909, has long construed the statutes to authorize private carriage of letters to employees of the carrier only when those letters are sent to employees acting in a representative capacity. Since 1912 the Postal Service has consistently held that letters to employees from unions and similar employee organizations are not within the scope of the exception. That construction is reasonable, since letters relating "to the current business of the carrier" (18 U.S.C. 1694) would normally be sent to employees acting as agents of the carrier, and employees receiving routine union correspondence are not acting in a representative capacity. The Postal Service's construction also advances the revenue-protecting purpose of the statutes. It is accordingly entitled to deference. Neither the "private hands without compensation" exception nor the suspension for "college and university organizations" authorizes the carriage here. The Postal Service, in line with court decisions and Attorney General opinions construing the private-hands-without-compensation exception, has consistently held that non-monetary compensation is implicit in arrangements whereby a party to a business relationship carries letters for another party to the business relationship. In addition, the Postal Service has concluded that Congress intended the exception to cover only gratuitous carriage. The Postal Service reasonably determined that compensation is involved in this case, where the State has ordered its instrumentality to carry letters for a union that seeks to represent state employees and where the carriage is in no sense gratuitous. The Postal Service's conclusion that the suspension for college and university organizations does not extend to a custodians' union is clearly correct, and respondent's suggestion that it conflicts with the Equal Protection Clause is without merit. ARGUMENT CARRIAGE IN A UNIVERSITY'S INTERNAL MAIL SYSTEM OF UNSTAMPED MAIL FROM A LABOR UNION TO UNIVERSITY CUSTODIAL EMPLOYEES VIOLATES THE PRIVATE EXPRESS STATUTES A. The Private Express Statutes Generally Bar The Carriage Of Letters By Parties Other Than The Postal Service In Order To Protect Postal Service Revenues 1. Congress enacted the Private Express Statutes pursuant to its constitutional authority to establish "Post Offices and post Roads" (U.S. Const. Art. I, Section 8, Cl. 7). The "postal monopoly" created by these statutes is of long standing. See United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 122 (1981). Congress in 1792 enacted its first postal law, which prohibited the private carriage of "any letter or letters, packet or packets, other than newspapers, for hire or reward." Act of Feb. 20, 1792, ch. 7, Section 14, 1 Stat. 236. /4/ The Postal Act of 1845 put "the private express statutes in essentially the form in which they remain today." Johnston, The United States Postal Monopoly, 23 Bus. Law. 379, 386 (1968). See The Post-Office Monopoly, 1 Monthly L. Rep. 385, 390-392 (1849). The 1845 enactment prohobited the establishment of any "private express," although it provided that "nothing in this act contained shall be construed to prohibit the conveyance or transmission of letters * * * by private hands, no compensation being tendered." Act of Mar. 3, 1845, ch. 43, Sections 9, 11, 5 Stat. 735-736. The postal monopoly extends only to the carriage of letters, and does not cover the delivery of packages. 1973 Postal Service Report 6. /5/ The Private Express Statutes are designed to facilitate the nationwide delivery of mail by protecting the Postal Service's monopoly on the carriage of letters, and hence the revenues of the Postal Service. See Ex parte Jackson, 96 U.S. 727, 735 (1878); United States v. Bromley, 53 U.S. (12 How.) 88, 96-97 (1851); United States Postal Service v. Brennan, 574 F.2d 712, 713-715 (2d Cir. 1978), cert. denied, 439 U.S. 1115 (1979). Congress has instructed the Postal Service to "provide prompt, reliable, and efficient services to patrons in all areas and (to) render postal services to all communities." 39 U.S.C. 101(a) (emphasis added). Moreover, "the United States has had, since 1863, a basic postage rate for letter mail that has not varied with the distance traveled." 1973 Postal Service Report 4. That policy is continued in the current postal laws, which provide that "(t)he rate for each such class (of mail) shall be uniform throughout the United States, its territories, and possessions." 39 U.S.C. 3623(d). Thus, it costs the same amount (currently 22›) to send a first-class letter from Maine to California that it costs to send the same letter from Capitol Hill to Georgetown. The Private Express Statutes prevent private carriers from competing selectively with the Postal Service on its most profitable routes. In the absence of these statutes, private carriers could "skim the cream" from the Postal Service's revenues by serving only selected areas, such as cities and other high-density regions; under the scheme established by Congress, these high-density regions subsidize mail deliveries to and from rural areas and between distant points, thus permitting a single postage rate to be charged nationwide. See 1973 Postal Service Report 113-117. If competitors were permitted "to serve the low-cost segment of the market, leaving the (Postal Service) to handle the high-cost services * * * the (Postal Service) would lose lucrative portions of its business, increasing its average unit cost and requiring higher prices to all users." Report of President's Comm'n on Postal Organization, Towards Postal Excellence 129 (1968). Thus, as the Second Circuit has stated in concluding that the Private Express Statutes are constitutional, "(t)he monopoly which Congress created is an appropriate and plainly adapted means of providing postal service beneficial to the citizenry at large" (Prennan, 574 F.2d at 716). 2. It is undisputed that, in the absence of an applicable exception or suspension, the carriage of letters sought by appellees here is prohibited by the Private Express Statutes. /6/ It is also clear that the type of carriage at issue here -- carriage by an employer of third-party mail addressed to its employees -- is covered, not only by the letter, but also by the spirit and the purpose, of the statutory prohibition. The use of internal mail systems to send letters to employees could divert a substantial portion of mail from the Postal Service, and it thus could seriously erode the postal monopoly that Congress has established. A number of organizations, from insurance companies to used car dealers, would find it desirable to contact employees of large universities and corporations, all of whom generally may be reached through internal mail services that move over post routes. The marginal cost to an employer of delivering such letters through its internal mail system would typically be lower than the average cost to the Postal Service of delivering them. In the absence of the Private Express Statutes, therefore, employers would have a rational incentive to carry letters from outside organizations to employees, either for cash consideration or in exchange for more indirect benefits. In the case of an organization with an ongoing relationship with an employer, such as a union or a supplier, such indirect benefits to the carrier might take the form of concessions in the context of the ongoing business relationship. The effect on Postal Service revenues of permitting such carriage would most likely be significant. As the University observes (J.S. 21), the record here shows that one union at one campus spent two to three thousand dollars per year on postage for correspondence sent to one group of University employees. There are many unions, many campuses, and many thousands of employees in the University of California alone. While Postal Service operating revenues are substantial, amounting in 1986 to approximately $30 billion (Postmaster General Ann. Rep. at 26-28 (1986), it is in the nature of the Postal Service's business that its revenues are derived from millions of individual transactions that occur in the course of a year. The application of the Private Express Statutes to particular types of transactions is therefore very important, because the cumulative effect nationwide of an erroneous application of the statutes to recurring transactions can severely deplete postal revenues. See United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. at 135 (Brennan, J., concurring in the judgment). /7/ B. The Letters-Of-The-Carrier Exception Does Not Authorize The University To Deliver The Union's Letters To University Employees 1. The foundation for the letters-of-the-carrier exception is 18 U.S.C. 1694 (reprinted in J.S. App. A100). That section prohibits the private carriage of letters over post routes with a number of exclusions, including an exception for such letters "as relate * * * to the current business of the carrier." /8/ That language was introduced into Rev. Stat. Section 3985 (2d ed. 1878), the predecessor of Section 1694, in 1909, and was based upon an 1896 opinion of the Attorney General. In that opinion, the Attorney General concluded that Congress in enacting the Private Express Statutes had not intended to bar common carriers from transporting their own letters, even though the language of Rev. Stat. Section 3985 did not explicitly so provide. The Attorney General had emphasized that the implied exception was a narrow one: "The right is to carry letters written and sent by the officers and agents of the railroad company which carries and delivers them, about its business, and these only." 21 Op. Att'y Gen. 394, 399 (1896). The Attorney General's 1896 opinion provoked controversy in Congress. Most Congressmen praised the good sense of the result reached by Attorney General Harmon, pointing out that a carrier "ought to have the right to send any communication which relates to the current daily operation and maintenance of the road," as where a railroad must communicate speedily with its employees in "the case of a wrecked train" (42 Cong. Rec. 1904 (1908) (Sen. Bacon); ibid. at 1904 (Sen. Sutherland)). Senator Bacon, however, found the Attorney General's result difficult to square with the literal language of the then-existing statute. He accordingly proposed that the statute be revised so as "to express in exact language what the Attorney-General says it means," viz., that "the purpose of the law was to prevent common carriers (from) carrying mail matters for others," and that its purpose was not to prevent them from carrying their own letters relating to their own business operations (id. at 1905). It was initially proposed that the desired clarification be effected by amending the statute to prohibit carriage of letters "for compensation" (42 Cong. Rec. 1905 (1908) (Sen. McLaurin); see id. at 1903 (Sen. Heyburn)). This suggestion was opposed, however, as being too liberal, on the ground that it might be construed to allow railroads to carry each other's letters free of charge (id. at 1905 (Sen. Sutherland); id. at 1904 (Sen. Bacon)). Such a result, Senator Sutherland stated, "would make * * * very serious inroads on the revenues of the (Post Office) Department" (id. at 1905). Senator Sutherland instead proposed that the statute be revised to prohibit private carriage of letters, except such letters as relate "to the current business of the carrier" (42 Cong. Rec. 1976 (1908)). This amendment, which drew on language previously proposed by Senator Bacon (id. at 1904-1905), was agreed to by the Senate (id. at 1976), and was incorporated in the statute as enacted. Act of Mar. 4, 1909, ch. 321, Section 184, 35 Stat. 1124. In proposing this amendment, Senator Sutherland stated (42 Cong. Rec. 1976 (1908)): I move that amendment because I think that it puts in express language previsely what the section means as it stands without it. * * * I think the opinion of the Attorney-General * * * gives the correct construction to this section. The section is dealing with the carrying of mail for others. It is not dealing with the question of the carrying of the mail of the carrier itself. Senator Sutherland emphasized that his amendment should be narrowly construed to cover only those letters relating directly to the management and conduct of the carrier's business. "I think it should be clear under the law," he stated, "that the carrier should not have the right to carry mail intended for others, but only its own mail" (ibid.). The House Report similarly stated that the amendment put the statute "in exact conformity with the construction placed upon existing law," citing the Attorney General's 1896 opinion (43 Cong. Rec. 3790 (1909)). In 1910 the question arose whether, under the statute as amended in 1909, a railroad could carry letters from agents of a railroad association, of which it was a member, to other members of the same association. The Attorney General determined that such carriage would violate the Private Express Statutes. 28 Op. Att'y Gen. 537 (1910). He explained (id. at 541): (T)he purpose of Congress in introducing this clause (authorizing carriage of letters relating to the current business of the carrier) was to permit a carrier to transport free outside the mails its own messages within the terms of the opinion of Attorney-General Harmon, and it was not the intention of Congress to revolutionize the then existing law and practice by permitting free transportation of letters and packets belonging to railroads or persons other than the carrier even though such letters or packets might "relate to the current business of the carrier." The Attorney General acknowledged that the language of the 1909 amendment might be thought to support a contrary result, but he added that "considerations of syntax and grammar must yield to the intention of Congress" (id. at 542). In 1912, the Attorney General again addressed the letters-of-the-carrier exception in a case similar to the instant case. The Postmaster General had inquired whether the Erie Railroad Company could deliver letters addressed to its workers from the Erie Employees Relief Association, an independent organization composed of railroad employees that managed the railroad's pension fund. See 29 Op. Att'y Gen. 418 (1912) (reprinted in J.S. App. A116-A118). Addressing the exception now contained in Section 1694, the Attorney General concluded that "Congress has imposed two conditions upon the free transportation of letters outside the mail: First, that the letters should be the letters of the carrier itself; and second, that they should relate to its own current business. The concurrence of both these conditions is essential to the privilege" (29 Op. Att'y Gen. at 419; J.S. App. 116-A117). Turning to the facts of the Erie case, the Attorney General opined that the 1909 amendment would permit the railroad to deliver letters sent "by the association to the railroad company (or its officers and employees as representing the railroad company) concerning relations between the railroad company and the association" (J.S. App. A117). The Attorney General concluded, however, that the exception did not extend to routine correspondence from the Association to railroad employees. "(I)t is not material," the Attorney General stated, "that the purpose of the association and the subject of its communications is a pension system for the carrier's employees, and so a matter of interest to it, for the law excepts only the communications of the carrier itself" (29 Op. Att'y Gen. at 419; J.S. App. A117). The Postal Service has consistently adhered to that interpretation of the exception. Prior to the issuance of formal regulations concerning the Private Express Statutes in 1974, the Postal Service had periodically published pamphlets describing those statutes' operation. The 1952 edition stated that Section 1694 excepted only "letters written by or addressed to officers or employees of the carrier on the business of the carrier; that is, sent by or addressed to officers of the carrier in their capacities as such officers or employees." United States Post Office Dep't, Restrictions on Transportation of Letters 16-17 (4th ed. 1952). Citing the 1912 Opinion of the Attorney General, the Postal Service pamphlet stated that "letters forwarded on union business * * * would not be within this exemption even though the senders and the addressees are also employees of the carrier" (id. at 17). The regulations issued in 1974 follow this longstanding interpretation of Section 1694. The regulation defining the scope of the letters-of-the-carrier exception provides (39 C.F.R. 310.3(b) (reprinted in J.S. App. A110)): The sending or carrying of letters is permissible if they are sent by or addressed to the person carrying them. If the individual actually carrying the letters is not the person sending the letters or to whom the letters are addressed, then such individual must be an officer or employee of such person (see Section 310.3(b)(2)) and the letters must relate to the current business of such person. As construed by the Postal Service, the exception thus imposes the dual requirement that the letters be letters "of the carrier" and that those letters relate "to the current business of the carrier." In a series of advisory opinions rendered in 1976, the Postal Service accordingly ruled that letters from labor unions to school district employees, carried by school districts in their internal mail systems, do not qualify as "letters of the carrier." See J.S. App. A73-A74. 2. In the instant case, as in the 1912 case analyzed by the Attorney General and the more recent school district cases, the letters-of-the-carrier exception does not apply. As the Postal Service explained in its advisory opinion, letters from the Union to the University's custodial employees are not "letters of the carrier" because they are neither sent by nor addressed to the University that is being asked to carry them. Rather, the letters are addressed to the University's employees, and such letters could qualify as "letters of the carrier" only if they were being sent to "members of the staff or faculty in their official capacity as representatives of the employer University" (J.S. App. A73). But it cannot plausibly be contended that workers receiving routine Union correspondence are acting as official representatives" of the University. To the contrary, it would be more accurate to describe such workers as acting, like the Union itself, in an arm's-length (if not an adversarial) relationship with the University. As the University observes in its jurisdictional statement (at 15), it could be subjected to an unfair labor practice charge under Cal. Gov't Code Section 3571(d) (West 1980) if it attempted to learn the contents of the union letters at issue here. We agree that "a letter the contents of which are protected from disclosure to the University" cannot be deemed to be a letter "of the University" (J.S. 15). Moreover, the letters here do not relate to "the current business of the carrier" (18 U.S.C. 1694) as that term has been construed by the Attorney General and the Postal Service. Any letter concerning union business, obviously, would usually be of some interest to the employer, and would at least pique the employer's curiosity. The Postal Service, however, has reasonably construed the statutory exception to mean that letters relate to the employer's "current business" only if they are sent to employees in their official capacity as the employer's representatives (J.S. App. A73). Thus, a letter sent by a union to a corporate officer proposing the commencement of collective bargaining negotiations, or a letter sent to a corporate personnel official concerning the handling of a grievance, would relate to the "current business" of the employer in the sense that each letter would be addressed to a person who could take official responsive action on the employer's behalf. This construction of the statute is strongly supported by its legislative history. Congress intended the phrase "current business," as distinguished from the term "business" in general, to be a narrow one. Senator Bacon, for example, responded to a proposal that the statute be revised to permit carriage relating "to the business of the carrier" by stating (42 Cong. Rec. 1905 (1908)): I am willing to have the Senator make it even narrower than that, and say the "current" business, in order that it might not relate to (the carrier's) financial transactions or anything of that kind, but to current business and operation. Congress thus regarded a carrier's "current business" as synonymous with "the management of or the conduct of the line" (42 Cong. Rec. 1976 (1908) (Sen. Fulton)), or the "daily operation and maintenance of the road" (id. at 1904 (Sen. Bacon)). Congress intended, in short, that "current business" should be narrowly construed to mean concrete matters susceptible of immediate action by the employer's representatives. The term thus cannot properly be interpreted, as it was interpreted by the court below, to embrace amorphous and long-range goals like the fostering of "harmonious labor relations." /9/ A narrow interpretation of the term "current business of the carrier" is obviously necessary lest compliance with the Private Express Statutes become optional on the part of the States and private parties. If States can define "harmonious labor relations" as the "current business" of a regulated employer, there is no clear limit on a State's ability to authorize its instrumentalities and private parties to deliver unstamped mail over federal postal routes. Even delivery of indisputably personal letters might be justified under that approach, since an employer by performing such a service for its employees would surely foster good relations with them. Such an expansive construction of the letters-of-the-carrier exception would result in widespread encroachment on the postal monopoly and a significant depletion of Postal Service revenues, in defiance of Congress's clearly expressed intent. Finally, in concluding that the term "current business of the carrier" should be read broadly to include anything having to do with labor relations, the court of appeal erred in consulting state law to determine the meaning of words used in a federal statute. The court instead should have deferred to the interpretation of the statute put forth by the Postal Service. "'It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute.'" Clarke v. Securities Indus. Ass'n, No. 85-971 (Jan. 14, 1987), slip op. 14, quoting Investment Co. Institute v. Camp, 401 U.S. 617, 626-627 (1971). "'(A) court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.'" Young v. Community Nutrition Institute, No. 85-664 (June 17, 1986), slip op. 6, quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 844 (1984). Since the Postal Service administers the Private Express Statutes, /10/ its reasonable interpretation of those statutes should be followed. Indeed, the Postal Service's interpretation of Section 1694 is a compendium of those attributes which make an agency's construction most deserving of deference: it is a long-standing interpretation that was formulated contemporaneously with the congressional enactment, it has been consistently applied, and it promotes the statutory purposes. See 5 K. Davis, Administrative Law Treatise Section 29:16 (2d ed. 1984). C. Neither The Exception For "Private Hands Without Compensation" Nor The Suspension For "College And University Organizations" Authorizes The Carriage At Issue 1.a. Congress has set forth in 18 U.S.C. 1696(c) another exception to the bar against private carriage of mail, providing that the Private Express Statutes do not prohibit "the conveyance or transmission of letters or packets by private hands without compensation." That exception, which is derived from the 1845 Postal Act, was construed almost immediately to be limited to the narrow situation in which no consideration whatsoever -- whether monetary or non-monetary, explicit or implied -- is furnished in exchange for the carriage. Thus, in 1846 a court held that a person could not "establish an express for the carrying of letters in connection with, or as part of his business of a merchandise express, although no charge was made for letters as such." United States v. Thompson, 28 Fed. Cas. 97, 98 (D. Mass.) (No. 16,489). In his 1896 opinion concerning the Private Express Statutes, the Attorney General similarly concluded that "the express or implied obligation of railroads to carry letters for each other to remotely connecting lines would amount to 'compensation' within the meaning of the statute" (21 Op. Att'y Gen. at 401). Congress understood and approved of that construction. During the debate on the 1909 amendments, one senator asked whether a proposed amendment prohibiting private carriage "for compensation" would allow railroads to carry mail for connecting carriers "under some common understanding," so that "there would be a network of railroad companies all over the United States carrying mail for one another." 2 Cong. Rec. 1905 (1908) (Sen. Sutherland). Senator McLaurin responded that the amendment, which was not enacted, would not have had that effect, "for if (the carriers) were to make an arrangement of that kind it would itself be for compensation. It would be a quid pro quo and it would violate the law." Ibid. Following the understanding of Congress, the courts, and the Attorney General, the Postal Service has long defined "compensation" to include non-monetary compensation. In 1934 it summarized the law by stating that the private-hands-without-compensation exception would not allow truckmen who deliver merchandise also to deliver letters, even though no additional charge were made for delivery of the letters, since "the contract is for the entire service performed." United States Post Office Dep't, The Private Express Statutes 9-10 (1934). In 1952 the Postal Service stated that the phrase "private hands without compensation" denotes "transportation of a letter which does not take place in the course of business of the person or firm carrying the letter." United States Post Office Dep't, Restrictions on Transportation of Letters 18 (4th ed. 1952). Current Postal Service regulations similarly provide that, "when a business relationship exists or is sought between the carrier and its user, carriage by the carrier of the user's letter will ordinarily not fall under this exception." 39 C.F.R. 310.3(c) (reprinted in J.S. App. A110). The Postal Service applied those regulations in the series of opinion letters (discussed above) concerning school districts, concluding that carriage of letters by a school district for a teacher's union is not carriage by "private hands without compensation," since the employer receives compensation in the form of the services of the teachers and the good will of the union. See J.S. App. A69-A71. b. Consistently with its regulations and its prior opinions, the Postal Service's advisory opinion here reasonably explained that an employer's carriage of letters from a union to employees normally would not be undertaken "without compensation" (J.S. App. A69-A72). Given the arm's-length relationship between the parties, the employer in such circumstances will typically expect "actual or hoped-for benefits" in exchange, whether in the form of "increased good will on the part of employees or of their representatives, in the forbearance (sic) of demands for other benefits, or in the facilitation of a continuing relationship" (id. at A71). The Postal Service noted in its advisory opinion that this case differs from the school district cases in that the University's obligation to carry the Union's letters is imposed by state law rather than by agreement between the University and the Union (J.S. App. A73). But that fact is completely irrelevant. The University is an instrumentality of the State of California, and the University's employees are state employees. Just as in the case of a private employer that agrees to carry union letters, the State presumably ordered its universities to do so in order to obtain good will from its employees and the unions that represent them, and ultimately to obtain benefits flowing from that good will (id. at A72 & n.1). Indeed, the court of appeal's statements (J.S. App. A9, A11) that the requested carriage was part of the University's "business" under state law, and that the carriage would enhance "harmonious labor relations," plainly esuppose that the carriage would yield the University an indirect quid pro quo. Moreover, as the Postal Service noted in its advisory opinion, the private-hands-without-compensation exception appears to have been "intended to permit the gratuitous carriage of letters that may be voluntarily undertaken out of friendship," whereas "the carriage contemplated here is in no sense a gratuitous act" (id. at A72). /11/ Finally, as is the case with the Postal Service's construction of the letters-of-the-carrier exception, its construction of the private-hands-without-compensation exception is of long standing, was developed contemporaneously with the enactment of the statute, has been applied consistently, and promotes the statute's revenue-protection purposes. It is accordingly worthy of the greatest deference. 2. The Board's reliance on a Postal Service regulation suspending application of the Private Express Statutes for letters of college and university organizations was also misplaced. That suspension extends to "bona fide student or faculty organizations" (39 C.F.R. 320.4 (reprinted in J.S. App. A114)). It is intended to cover "core" university organizations that would be covered by the letters-of-the-carrier exception but for the happenstance that the organization in question is legally distinct from the university (J.S. App. A74). As the Postal Service concluded in its advisory opinion (id. at A74-A75), a labor union seeking to represent a University's custodial employees "is neither a student nor a faculty organization" and is therefore outside the scope of the suspension. Contrary to the Board's belief (J.S. App. A42), that conclusion poses no constitutional problem whatsoever. As an initial matter, it is clear that internal mail systems generally are not public forums. This Court so held in Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44-49 (1983). /12/ Accordingly, "(t)he touchstone for evaluating * * * distinctions (in access to an internal mail system) is whether they are reasonable in light of the purpose which the forum at issue serves" (id. at 49). The Postal Service's distinction between student and faculty organizations, which are functionally part of a university, and labor unions, which exist in an adversarial relationship to the university, is obviously reasonable, since campus mail systems exist to facilitate communication within campus communities. The Board's suggestion that this distinction is "constitutionally suspect" on equal-protection grounds (J.S. App. A42) is meritless. That suggestion was based on the fact that, at the time the Board issued its decision, "the Postal Service ha(d) not ruled out the possibility that a labor organization representing faculty members at a college or university could use the internal mail system under the suspension" (id. at A42). The Postal Service has since concluded, however, that a faculty union may not use an internal campus mail system to send letters to faculty members. PES No. 86-1 (Jan. 6, 1986). While it appears, contrary to the Board's belief, that a distinction between faculty unions and custodial unions would be reasonable, the fact that the Postal Service has now determined that no unions may send routine correspondence to employees through a university's internal campus mail system completely answers the Board's concern. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General ALBERT G. LAUBER, JR. Deputy Solicotor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General ANTHONY J. STEINMEYER E. ROY HAWKENS Attorneys CHARLES D. HAWLEY Assistant General Counsel MARGARET O'CONNELL Attorney United States Postal Service AUGUST 1987 /1/ It is undisputed that the University delivers mail over post routes. See J.S. App. A26-A27. The postal Service delivers mail to approximately 50 locations on the Berkeley campus, and the University's internal mail system delivers mail to those same 50 locations, plus an additional 100 locations. Ibid. /2/ The Postal Service is authorized by 39 U.S.C. 601(b) to suspend the operation of the Private Express Statutes "where the public interest requires the suspension." /3/ It appears that the Board, having concluded that California law required the University to deliver the Union's unstamped mail, was compelled to conclude that federal law did not bar that outcome. The court of appeal had previously instructed the Board that, under the California Constitution, it lacked power to declare a state statute unenforceable on federal grounds (J.S. App. 16 & n.2). The court explained that, under a recent constitutional amendment adopted by the California electorate, state agencies are prohibited from deciding that a state statute is unenforceable by reason of preemptive federal law (id. at A63). The court of appeal had nonetheless instructed the Board that it remained free to consult and interpret the relevant federal postal provisions (id. at A64). /4/ The 1792 Postal Act continued the postal monopoly that had been established under the Articles of Confederation. See Act of Oct. 18, 1782, 23 J. Continental Cong. 672-673; Craig & Alvis, The Postal Monopoly: Two Hundred Years of Covering Commercial as Well as Personal Messages, 12 U.SLF. L. Rev. 57, 70-71 (1977). Postal monopolies were well established in England and in Europe by the late Eighteenth Century. Johnston, The United States Postal Monopoly, 23 Bus. Law. 379, 380 (1968); see United States Postal Service v. Brennan, 574 F.2d 712, 714-715 (2d Cir. 1978), cert. denied, 439 U.S. 1115 (1979). A recent survey of 10 developed nations indicated that the government had a legal monopoly on postal communications in all 10 countries. Board of Governors of the Postal Service, Statutes Restricting Private Carriage of Mail and Their Administration, H.R. Doc. 5, 93d Cong., 1st Sess. 63-68 (Comm. Print 1973) (hereinafter 1973 Postal Service Report. Thus, although it is possible to imagine a world without postal monopolies (see U.S. Dep't of Justice, Changing the Private Express Laws: Competitive Alternatives and the U.S. Postal service, U.S. Gov't Doc. No. 027-000-00476-8, at 24-28 (1977)), postal monopolies have long been the near-universal rule, at least in developed countries. /5/ As noted above (note 2, supra), the Postal Service is authorized to suspend the operation of the Private Express Statutes "where the public interest requires the suspension" (39 U.S.C. 601(b)). One such suspension, covering letters of student and faculty organizations (39 C.F.R. 320.4), is involved in this case. In 1979, the Postal Service promulgated a distinct suspension for "extremely urgent letters" (39 C.F.R. 320.6), which covers the operations of the privately-operated same-day and overnight delivery services. The latter suspension was enacted in response to congressional concern that the Postal Service was not adequately serving the needs of businesses with time-sensitive materials. See Private Express Statutes: Hearings Before the Subcomm. on Postal Operations and Services of the House Comm. on the Post Office and Civil Service, 96th Cong., 1st Sess. 21-22 (statements of Chairman Wilson), 333-334 (statements of Postmaster General Bolger) (1979). In addition to the two statutory exceptions at issue in this case -- the exceptions for "letters of the carrier" and for letters carried by "private hands without compensation" -- Congress has excerpted from the reach of the Private Express Statutes letters accompanying cargo (39 U.S.C. 602(a)(2), 39 C.F.R. 310.3(a)), letters carried by special messenger (18 U.S.C. 1696(c), 39 C.F.R. 310.3(d)), and letters carried to a post office (18 U.S.C. 1696(a), 39 C.F.R. 310.3(e). /6/ Certain sections of the Private Express Statutes speak in terms of private carriage of letters, which conceivably could be thought to suggest that carriage by public entities, such as the state University here, would be permissible. The Private Express Statutes, however, broadly prohibit carriage "out of the mails" (39 U.S.C. 601)a)). Those statutes, obviously, have never been understood to permit the States to set up their own mail services in competition with the federal Postal Service, and appellees make no contention to the contrary. /7/ Enforcement of the Private Express Statutes works no serious hardship on universities or other large employers. If an employer determined that its relations with a union representing its employees would be improved by giving the union access to its internal mail system, the employer could agree to provide such access and to pay the postage due on the letters in question (see 39 U.S.C. 601(a) (reprinted in J.S. App. A102)). Such an employer cannot, however, divert routine union letters from the mails, driving up the average cost to the Postal Service of delivering mail nationwide. /8/ Although the exception for letters relating to the "current business of the carrier" appears only in Section 1694 -- and not, for example, in 18 U.S.C. 1696, which also prohibits private carriage of letters, or 39 U.S.C. 601(a), which broadly prohibits the carriage of letters except through the mails -- it has always been understood that the exception for letters relating to the current business of the carrier is a general exception from the Private Express Statutes rather than one limited to Section 1694. /9/ Contrary to the court of appeal's statement (J.S. App. A9-A11), this Court's decisions in United States v. Erie R.R., 235 U.S. 513 (1915), and Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983), do not support its conclusion that the current business of the University includes the business of the Union for purposes of 18 U.S.C. 1694. The mail at issue in Erie R.R. involved a joint enterprise operated by a railroad and a telegraph company, and the Court held that the "business" of the railroad included the business of the joint enterprise (see 235 U.S. at 516-517). That case sheds no light on how the term "current business of the carrier" should be construed where, as here, two organizations are in an arm's-length or adversarial relationship. In Perry Education Ass'n, the Court expressly declined to reach the question presented here (460 U.S. at 39 n.1), and did not consider the meaning of "current business of the carrier" in Section 1694. /10/ Congress has directed the Postal Service "to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives of this title" (39 U.S.C. 401(2)). In Associated Third Class Mail Users v. United States Postal Service, 600 F.2d 824, 826 n.5(D.C. Cir.), cert. denied, 444 U.S. 837 (1979), the court properly concluded that the Postal Service's authority to promulgate regulations implementing the Private Express Statutes extends to those provisions now codified in Title 18 of the United States Code (Sections 1693-1699) as well as to those provisions codified in Title 39 (Sections 601-606). /11/ Cf. 42 Cong. Rec. 1905 (1908) (Sen. McLaurin) (proposing to amend Rev. Stat. Section 3985 (2d ed. 1878) to bar private carriage "for compensation," since "there ought to be some provision whereby an innocent man, probably one in an humble position and following an humble pursuit, would not stumble into a pitfall when, out of the goodness of his heart, he was trying to do a favor to some friend * * *"). /12/ The facts in Perry Education Ass'n presented a much stronger case for the argument that the internal mail system was a public forum than do the facts here. The record there showed that the school district had allowed "outside organizations such as the YMCA, Cub Scouts, and other civic and church organizations" to use its mail system (460 U.S. at 47). The record here shows that "(t)he only example of the charitable and other non-employee organization use of the mail system on the Berkeley campus was the United Way campaign" (J.S. App. A52).