THE 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, 1986 On Appeal From The California Court Of Appeal, First Appellate District Brief for the United States as Amicus Curiae This brief is submitted in response to the Court's order inviting the Solicitor General to express the views of the United States. TABLE OF CONTENTS Question presented Statement Discussion Concusion QUESTION PRESENTED Whether the delivery by a university of unstamped mail from a labor union to university employees violates the Private Express Statutes. STATEMENT 1. In 1979 the American Federation of State, County, and Municipal Employees (the Union) 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 at 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 (USPS). /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)), supplemented by a regulatory suspension of those statutes' operation "for letters of * * * bona fide student or faculty organizations" (39 C.F.R. 320.4). See J.S. App. A73, A74. /2/ In a 1982 opinion letter (see 39 C.F.R. 310.6), the Postal Service advised the University that neither of these exceptions would permit it to deliver unstamped mail from the Union to the University's custodial employees. 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," and that this exception would authorize delivery of unstamped employee mail 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 USPS 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 sence 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 (J.S. App. A74). The opinion further advised that the regulatory suspension recognized "for certain letters of college and university organizations" was likewise unavailable (id. at 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 A76). 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)) 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 Union's unfair labor practice charge, the California Public Employment Relations 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 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 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, and 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. /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 (id. at 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 used 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-A12). The California Supreme Court denied the University's petition for review, Justice Lucas dissenting (J.S. App. A13). DISCUSSION The California Court of Appeal erred in holding that the Private Express Statutes do not bar the Board's application of California Government Code Section 3568 to require delivery of the Union's unstamped mail. As the Postal Service has consistently ruled, letters sent by a union and delivered through an employer's internal mail system to current or prospective union members are not "letters of the carrier" under 18 U.S.C. 1694 and 39 C.F.R. 310.3(b). Such letters are not sent to or received by a representative of the carrier, and such letters do not relate to the carrier's current business. Delivery of such letters, moreover, is not authorized by 39 C.F.R 320.4, which covers letters of "bona fide student or faculty organizations," or by 18 U.S.C. 1696(c) and 39 C.F.R. 310.3(c), which concern carriage by "private hands without compensation." Because the state court rejected the claim that the California statute as thus applied is repugnant to federal law, and because there is a substantial question as to the validity of that decision, we believe that this Court should note probable jurisdiction of the appeal under 28 U.S.C. 1257(2). 1. Contrary to appellee's suggestion (Mot. to Aff. 3 n.4), the University has properly invoked this Court's appellate jurisdiction. Section 1257(2) provides that an appeal lies from the decision of a state court "where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity." This Court has "held consistently that a state statute is sustained within the meaning of Section 1257(2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds." Japan Line, Ltd. v. County of plos Angeles, 441 U.S. 434, 441 (1979). Accord, e.g., Rose v. Rose, No. 85-1206 (May 18, 1987), slip op. 4 n.3; McCarty v. McCarty, 453 U.S. 210, 219-220 n.12 (1981); R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice 112-113 (6th ed. 1986). Appellant in the instant case squarely argued that Section 3568 of the California Government Code could not constitutionally be applied to compel the University to deliver the Union's unstamped mail because the Private Express Statutes prohibit that carriage. The California court of appeal rejected that argument, upholding Section 3568 as applied. Accordingly, this is an appeal. 2. a. The court of appeal misconstrued the letters-of-the- carrier exception in a way that undermines the purpose of the Private Express Statutes. Congress enacted those statutes pursuant to its constitutional authority to establish "Post Offices and post Roads" (U.S. Const. Art. I, Section 8, Cl. 7). The 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. (6 Otto) 727, 735 (1878); United States v. Bromley, 53 U.S. (12 How.) 87, 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). This Court summarized the history and purpose of the Private Express Statutes in United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 122 (1981), as follows: (E)xpenditures began exceeding revenues as early as the 1820's as the postal structure struggled to keep pace with the rapid growth of the country westward. Because of this expansion, delivery costs to the South and West raised average postal costs nationally. To prevent competition from private express services, Congress passed the Postal Act of 1845, which prohibited competition in letter mail and established what is today referred to as the "postal monopoly." The Private Express Statutes, the lineal descendents of the Postal Act of 1845, are thus designed to protect the postal monopoly by preventing private carriers from competing selectively with the Postal Service on its most profitable routes, competition that Congress has concluded would have the undesirable effect of driving up the cost of mail service generally. Several exceptions to the statutory postal monopoly permit limited carriage of letters by entities other than the Postal Service. The foundation for the letters-of-the- carrier exception is 18 U.S.C. 1694. That section prohibits the private carriage of letters over postal routes with a number of exceptions, including an exception for such letters "as relate * * * to the current business of the carrier." That language was introduced into Rev. Stat. Section 3985, 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, because some Congressmen believed that railroads and other private carriers should not be permitted to carry unstamped letters even of their own officers and agents. Congress ultimately decided, however, "to adopt formally the interpretation given by" the Attorney General in 1896. See 28 Op. Att'y Gen. 537, 540 (1910). The exception for letters that "relate * * * to the current business of the carrier" was therefore enacted. Act of May 4, 1909, ch. 321, Section 184, 35 Stat. 1124. The legislative history makes it clear that Congress intended the scope of this exception to correspond to the interpretation advanced by the Attorney General 13 years earlier. /4/ 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 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 support a contrary result, but added that "considerations of snytax 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 at 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" (J.S. App. A116-A117). Turning to the facts of the case, the Attorney General opined that the 1909 amendment would permit the Erie Railroad to deliver letters of the Association "in so far as the letters are addressed to the railroad company (or its officers or employees as representing it)" (J.S. App. A118). 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 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" (id. at A117). Following these long-standing and contemporaneous interpretations of the statute by the Attorney General, the Postal Service has promulgated regulations defining the scope of the letters-of-the- carrier exception. The regulations provide (39 C.F.R. 310.3 (b)): 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 a school district in its internal mail system, do not qualify as "letters of the carrier." See J.S. App. A73-A74. b. 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 (J.S. App. A73), letters from the Union to the University's custodial employees are not "letters of the carrier" because they are not "sent by or addressed to members of the staff or faculty in their official capacity as representatives of the employer University." 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 juridictional statement (at 15), it could be subjected to an unfair labor practice charge under California Government Code Section 3571(d) 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 "to 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. Although any letter on union business would likely be of some interest to the employer, the Postal Service has reasonably construed the statutory exception to require that letters be sent to employees in their official capacity as representatives of the employer (J.S. App. A73). That construction is strongly support by the statute's legislative history. It also sets forth a fair reading of the statutory language, since letters relating to the "business of the carrier" would normally be sent to employees in an agency capacity rather than in some other capacity. In concluding that the term "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 the federal statute. The court instead should have deferred to the long- standing interpretation of the statute put forth by the Postal Service. See Young v. Community Nutrition Institute, No. 85-664 (June 17, 1986), slip op. 6; Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984); North Haven Board of Education v. Bell, 456 U.S. 512 (1982); Udall v. Tallman, 380 U.S. 1, 5 (1965). A narrow interpretation of the term "business of the carrier" is obviously necessary lest compliance with the Private Express Statutes become optional on the part of the states. If states can define "harmonious labor relations" as the business of a state university, there is no clear limit on a state's ability to authorize its instrumentalities to deliver unstamped mail over federal postal routes. Even delivery of indisputably personal letters might be justified under that approach, since the state by performing such a service to 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. /5/ c. Although the court of appeal did not address the alternative grounds that the Board advanced for its decision, those rationales are also without merit. 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." Postal Service regulations have long defined "compensation" to include nonmonetary compensation, stating 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 ordinatily not fall under this exception" (39 C.F.R. 310.3(c)). Consistently with these 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 its employees normally is not 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 forebearance (sic) of demands for other benefits, or in the facilitation of a continuing relationship" (id. at A71). The Postal Service further observed that the "private hands without compensation" exception was "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). /6/ The Board's reliance on a Postal Service regulation suspending application of the Private Express Statutes for "bona fide student and faculty organizations" was equally misplaced. The exception covers "core" university organization (J.S. App. A74) that would be covered by the letters-of-the-carrier exception but for the fact that the organization in question happens to be legally distinct from the university. 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 that conclusion, contrary to the Board's belief (id. at A42), poses no problem under the Equal Protection Clause. 3. The question presented here is of great importance to the United States Postal Service. Postal Service operating revenues are substantial, amounting in 1986 to approximately $30 billion. Of this amount, some $27 billion was derived from classes of mail, consisting primarily of letters, that are protected by the Private Express Statutes. Annual Report of the Postmaster General for 1986, at 26-28. 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 severly deplete postal revenues. See Greenburgh Civic Ass'n, 453 U.S. at 135 (Brennan, J., concurring). As the University observes (J.S. 21), the record here shows that one union at one campus spent two to three thousand dollars a 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. Moreover, although the question presented here has thus far arisen fairly infrequently outside California, the court of appeal's rationale extends far beyond the University of California system and can be invoked by other schools and other public institutions nationwide. Unless that court's decision is reversed, therefore, the predictable consequence will be a significant reduction in postal revenues, resulting in an increased cost to the public or a less efficient postal system, either of which is at odds with the purpose of the Private Express Statutes. CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General ALBERT G. LAUBER, JR. Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General ANTHONY J. STEINMEYER E. ROY HAWKENS Attorneys CHARLES D. HAWLEY Assistant General Counsel United States Postal Service MAY 1987 /1/ It is undisputed that the University delivers mail over post routes. The University's internal mail system delivers mail to approximately 150 locations on the Berkeley campus, and the Postal Service delivers mail to approximately 50 locations on the campus. J.S. App. A26-A27. /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." The Postal Service has promulgated regulations suspending the operation of the Statutes in a number of situations, including the suspension discussed in the text and an unrelated suspension for "extremely urgent letters" (39 C.F.R. 320.6). It is the latter suspension that covers the operations of various privately operated same-day and overnight delivery services. /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 Board noted that the court of appeal had previously instructed it that, under the California Constitution, it lacked power to declare a state statute unenforceable under federal law (J.S. App. A16 & n.2). Indeed, the court of appeal had previously instructed the Board that under a recent constitutional amendment adopted by the California electorate, state agencies may not decide that a state law is "unenforceable by reason of preemptive federal postal law" (id. at A63 (emphasis added)). 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 proponent of the 1909 amendment stated: "I would be perfectly content if (Rev. Stat. Section 3985) was so recast that it would in fact express what the opinion of the Attorney-General said he thought it did express; in other words, I simply wish that the section shall be put in the shape that the Attorney-General construes it now to be in." 42 Cong. Rec. 1975 (1908) (statement of Sen. Bacon). The House Report 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). /5/ Contrary to the court of appeal's statement (J.S. App. A9-A11), this Court's decision 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 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 "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). /6/ The Postal Service's narrow construction of the "private hands without compensation" exception is of long standing. In his 1896 opinion, the Attorney General 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). The Attorney General also doubted whether delivery by an employee of a railroad could ever properly be termed delivery by "private hands" (ibid.). It would be even more strained to conclude that delivery of mail by an employee of a state is delivery by private hands.