Regents of the University of California (Einheber) (PERB 0949H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JACK 	EINHEBER,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-322-H
PERB Decision No. 	949-H
August 13, 	1992
Appearances: 	Jack Einheber, 	on his own behalf; 	Joyce Harlan,
Labor Relations 	Representative, 	for the Regents 	of the University
of 	California.
Before Camilli, 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by Jack
Einheber 	(Einheber) 	to the attached ruling on a motion to
dismiss. 	The PERB administrative 	law judge 	(ALJ) 	dismissed the
complaint which 	alleged 	that 	the 	University 	of 	California
violated 	section 	3571(a) 	of 	the Higher Education Employer-
Employee 	Relations Act 	(HEERA) 	when 	it dismissed Einheber 	from
1 HEERA is 	codified at Government Code 	section 	3560 	et 	seq.
HEERA section 3571 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise of 	rights
guaranteed by this 	chapter.

his 	position as 	a 	University police 	officer.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the transcript, 	exhibits, 	proposed decision, 	Einheber's
exceptions 	and the University's 	responses 	thereto. 	The Board
finds 	the ALJ's 	findings 	of 	fact and 	conclusions 	of 	law to be
free 	of prejudicial 	error and therefore 	adopts 	them as 	the
decision of 	the Board itself.
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SF-CE-322-H are hereby DISMISSED.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
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STATE 	OP 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JACK 	EINHEBER,
Charging 	Party,
v.
REGENTS 	OF THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-322-H
RULING 	ON A
MOTION TO 	DISMISS
(4/3/92)
Appearances: 	Jack Einheber, 	on his own behalf; 	Joyce Harlan,
Labor Relations 	Representative, 	for the Regents 	of the University
of California.
Before James W. 	Tamm, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On May 	16, 	1991, 	Dr. 	Jack Einheber 	(Charging Party or
Einheber) 	filed this 	unfair practice 	charge against the 	Regents
of the University of California 	(University). 	The charge alleges
that 	Einheber was 	dismissed 	from his 	position as 	a 	university
police 	officer 	at 	the 	Berkeley 	campus 	because he 	engaged 	in
protected 	activities.
On July 23, 	1991, 	the office of the General Counsel of the
Public 	Employment Relations 	Board 	(PERB or Board) 	issued a
complaint alleging a violation of 	section 3571(a) 	of 	the Higher
Education Employer-Employee 	Relations 	Act.1
1She 	Higher Education 	Employer-Employee 	Relations 	Act 	is
codified at Government Code 	section 	3560 	et 	seq. 	Section 	3571
reads, 	in pertinent part:
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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It 	shall 	be unlawful 	for the higher education
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise of 	rights
guaranteed by this 	chapter.
A settlement conference was held on September 	10, 	1991,
however, 	the matter remained unresolved. 	A prehearing 	conference
was 	held November 	19, 	1991. 	A formal hearing was held November
25 through 27, 	1991. 	At the conclusion of Charging Party's 	case
in chief, 	the University made a motion to dismiss. 	The parties
asked to brief 	the matter, 	transcripts were prepared and briefs
were 	filed. 	After 	several party initiated extensions, 	the motion
was 	submitted on March 	10, 	1992.
FINDINGS 	OF 	FACT
At all 	times 	relevant 	to this 	case the Charging Party was 	a
police officer with the UC Berkeley Police Department 	(UCBPD).
Charging 	Party 	had 	engaged 	in protected 	activities 	by preparing,
circulating and presenting to the 	University, 	a 	questionnaire
soliciting 	support 	for the position that 	outside 	candidates
should be 	selected to 	fill 	the vacant Chief of 	Police position.
Although 	Einheber's 	questionnaire 	soliciting 	support 	for 	outside
candidates was 	not 	specifically critical 	of 	internal 	candidates,
it 	implied that 	the 	internal 	candidates were 	not qualified 	to
lead the department. 	In circulating the questionnaire, 	Einheber
also 	freely 	shared with other officers 	his 	personal 	views 	that
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internal 	candidates 	did 	not possess 	the 	necessary 	integrity 	and
leadership 	skills. 	Einheber also met with Associate Vice
Chancellor Phil 	Encinio 	in efforts 	to 	get 	the 	candidate pool 	for
the Chief 	of 	Police position opened 	to people outside 	the
department.
Approximately 	14 	fellow officers 	returned 	Einheber's
questionnaire, 	some 	echoing Einheber's views 	and others 	opposing
his position.
The 	search was 	opened to outside candidates, 	but then later,
due to budget restrictions, 	it was 	once again limited to 	internal
candidates. 	In September 	1990, 	one of those internal candidates,
Victoria Harrison, 	was named as Chief. 	After she became Chief,
she 	learned of 	Einheber's 	questionnaire and his 	efforts 	to 	expand
the 	search to outsiders.
On November 2, 	1991, 	Einheber was 	involved in an off-duty
incident which led to his 	dismissal. 	Einheber's part-time 	live-
in 	girlfriend had been the 	subject 	of 	numerous 	outstanding
traffic 	warrants 	and one 	outstanding 	felony arrest warrant.2
Police 	officers 	from the City 	of 	Oakland 	Police 	Department 	(OPD)
sought the assistance of the UCBPD 	in making an arrest, 	since
they believed 	the 	suspect 	might 	be 	living 	in Einheber's
2Einheber was 	aware 	the warrants 	had been 	issued because 	he
had, 	without proper authorization, 	accessed the department's
computer 	system to 	check on the warrants 	issued 	for his
girlfriend. 	The department 	listed this 	unauthorized use of 	the
computer 	system as 	an additional 	reason 	for his 	dismissal. 	While
it may have been a contributing factor, 	it is unlikely the
department would have 	terminated 	Einheber 	if 	that had been his
only offense.
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apartment. 	Two OPD officers, 	accompanied by a UCBPD officer,
went 	to 	Einheber's 	apartment. 	They met Einheber outside 	of 	his
apartment. 	They told him of 	the outstanding warrants 	for the
arrest of 	his 	girlfriend and asked 	if 	she was 	living with
Einheber. 	He told them 	"no."3 Then they asked him directly 	if
she was 	in his 	apartment. 	Once again, 	Einheber told them 	"no."
An OPD officer 	asked 	again reminding Einheber that 	it was 	a
felony to harbor a 	fugitive. 	Einheber again repeated that 	she
was 	not 	in the apartment. 	The officer then asked if they 	could
go 	into 	the 	apartment 	and 	check for themselves. 	Einheber told
them the 	apartment was 	messy 	and he would 	rather 	they didn't.
They 	said 	they didn't 	care 	if 	the 	apartment was 	messy 	and 	asked
again 	if 	they could 	look 	for themselves. 	Einheber once 	again
denied 	them permission to 	look 	for 	themselves.
Einheber knew that his 	girlfriend was 	in his 	apartment 	at
the time, 	but testified that he 	sought to protect his 	girlfriend
out 	of 	concern 	for her physical 	and mental well 	being. 	Einheber
feared 	she was 	suicidal 	and had been on medication. 	He 	feared
that because 	he was 	scheduled 	to undergo 	an operation 	later 	that
day, 	if his 	girlfriend were 	jailed 	she would run out of
medication before 	he would be 	able 	to 	get her prescription
filled.
3Einheber testified that his answer was accurate because his
girlfriend was 	basically 	homeless 	and 	only 	stayed with 	him 	for
short periods 	of time, 	rather than actually 	"living" 	with him. 	I
find this 	testimony to be unconvincing and evasive. 	I 	find
Einheber was 	aware 	the officers were 	seeking to 	arrest his
girlfriend and he was 	trying to hide her.
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There 	is 	contradictory testimony about what happened next.
According to Einheber, 	he realized he was making a mistake, 	then
changed his mind, 	told the officers 	that 	she was 	in the apartment
and offered to assist 	them. 	According to the UCBPD 	internal
affairs 	investigator, 	one OPD officer told the other one to go
knock on the 	apartment door to 	see 	if 	the 	suspect would open 	it.
Only then, 	once Einheber 	suspected he would be 	caught harboring a
fugitive, 	did he 	change his 	story and admit that the 	suspect was
in the apartment.
For purposes 	of this 	ruling, 	it 	is not necessary to resolve
this 	disputed evidence. 	It 	is 	sufficient to 	find that at 	least
on 	several 	occasions 	Einheber 	lied to 	the 	arresting 	officers
about 	the presence of his 	girlfriend 	in his 	apartment and UCBPD
believed 	Einheber would 	not 	have 	volunteered 	that 	his 	girlfriend
was 	in his 	apartment 	if he 	could have 	gotten away with 	it.
The 	OPD 	officers 	were 	upset 	that 	Einheber 	impeded 	their
arrest. 	One of the officers went 	so far as to 	speak to the
District Attorney 	about bringing 	criminal 	charges 	against
Einheber.
The 	UCBPD officer assisting the two OPD officers wrote 	a
full 	report on the 	incident. 	The department then assigned an
internal 	affairs 	investigator to 	conduct 	an investigation. 	The
Chief's 	staff 	met with the 	Chief 	to 	review disciplinary
recommendations. 	The 	staff 	recommended dismissal. 	The Chief
considered the advice of her staff, 	then terminated Einheber.
5
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DISCUSSION 	AND 	CONCLUSIONS
In order to prove a prima 	facie violation, 	the Charging
Party 	needs 	to prove 	(1) 	that he 	engaged 	in protected activity,
(2) 	that management had knowledge of his protected activity, 	(3)
that the University took adverse action against him and 	(4) 	that
the 	University 	took the adverse 	action 	against 	him because 	he had
engaged 	in that protected activity. 	(Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	California State University
(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Once the Charging Party has 	done that, 	the burden shifts 	to
the 	University to prove that 	it would have dismissed Charging
Party regardless 	of 	any protected activity. 	However, 	if the
Charging Party has 	not proven a prima 	facie case, 	the burden does
not 	shift to the University, 	and 	it 	is 	under no obligation to put
forth 	any 	evidence.
I 	will 	briefly review the 	elements 	of Charging Party's 	case.
The 	first 	requirement 	is 	that 	Einheber engaged 	in protected
activity. 	The 	evidence of protected activity is 	twofold.
First, 	that Einheber 	spoke out 	in a highly critical manner of
department management, 	specifically, 	that Harrison lacked
integrity and 	leadership ability. 	Second, 	that he went to 	some
efforts 	to organize other employees 	to give 	similar 	feedback
about 	the department's 	internal 	candidates 	for the Chief 	of
Police position. 	I 	believe the 	combination of 	those two
activities, 	make Charging Party's activities protected. 	(State
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of California 	(Department of Personnel Administration) 	(1982)
PERB Decision No. 	257-S.)
The 	second element, 	that the 	employer had knowledge of 	the
Charging Party's protected 	activity 	is 	not 	completely 	clear.
Although 	Harrison knew of 	Einheber's 	questionnaire 	and 	efforts 	to
expand the search to outsiders, 	it is unclear whether she, 	or
anyone who 	recommended Einheber's 	termination, 	knew of 	Einheber's
critical 	remarks 	about Harrison's 	leadership 	skills.
The third 	element, 	that the University took adverse action
against the Charging Party, 	has been proven very clearly. 	They
fired 	him.
The 	final 	element, 	that the adverse action was 	taken because
the Charging Party had engaged 	in protected activity, 	is 	the
element where there is a complete failure of proof. 	I 	am not
convinced that the Charging Party's 	actions, 	in 	speaking out
against Harrison as 	a manager and 	leader, 	and in circulating the
questionnaire to 	increase 	the 	candidate pool 	for the 	new chief,
had 	anything 	to do with Charging 	Party's 	dismissal.
Rarely are 	there 	cases 	with direct 	evidence 	of 	a 	nexus 	or
causal 	connection between 	the 	protected 	activity 	and 	the 	adverse
action. 	That 	is 	usually proven by circumstantial 	evidence.
However, 	when you look at the types 	of 	indicators 	usually 	found
in such cases, 	it does 	not 	support 	such a 	finding in this 	case.
For 	instance, 	if 	the Charging Party were treated 	in a
disparate manner, 	that would be 	evidence of unlawful motivation.
Here, 	however, 	there is a pattern of 	sworn officers of the
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department 	consistently being held 	to 	a 	high 	standard 	of
integrity. 	The department management 	legitimately 	felt 	the
Charging 	Party had 	engaged 	in very 	serious 	conduct 	that had
interfered with 	an 	investigation and 	arrest 	attempt 	of 	the 	OPD.
They 	felt 	Einheber's 	actions 	reflected not 	only on the 	integrity
and the 	judgment of 	the Charging Party, 	but also 	reflected poorly
on the UCBPD as 	a whole 	in its 	relationship with the OPD.
Interfering with 	a 	legitimate 	investigation and 	arrest 	of 	another
police department, 	no matter how short the duration of the
deception, 	or how legitimate the 	concerns were 	for the personal
well 	being of 	the 	suspect 	strikes 	at 	the very heart of 	a police
officer's 	duty as 	seen by the management of 	UCBPD.
There is 	evidence of 	similar action 	(i.e., 	notice of 	intent
to terminate or pressuring 	individuals 	to resign) 	in other cases
involving potential 	criminal 	activity or actions 	which put 	the
reputation of the UCBPD at 	jeopardy. 	There 	is 	also 	evidence of
other harsh punishment 	imposed because 	it 	involved 	a 	question of
integrity. 	A good example of this 	is 	a 	case where an off-duty
police officer was 	improperly using a parking permit. 	Any other
employee 	of 	the 	University would have 	merely been required 	to pay
restitution for the 	lost parking revenues 	(in this 	case 	about
$40). 	But, 	since the case involved a police officer, 	that
officer was 	also 	given a 	one week 	suspension without pay.
The 	cases 	put 	forth by Charging Party as 	evidence of
disparate 	treatment were 	either based 	on hearsay 	or double
hearsay, 	were factually inaccurate, 	or were so remote 	in time and
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having no 	connection with the 	current Chief 	and current
management 	staff, 	that they do not 	support a 	finding of disparate
treatment.
Additionally, 	there 	is 	ample evidence that other police
officers 	engaged 	in 	similar protected activity. 	Others
criticized the 	internal 	candidates 	for Chief, 	and 	sought a
broader candidate pool. 	Sergeant Dillard was president of 	the
Police Officers' 	Association and was more active than the
Charging Party. 	There was 	no 	evidence that Dillard was 	singled
out 	or retaliated against 	for his participation. 	One witness
testified in a very credible manner, 	that about 	25 percent of 	the
officers 	he met with 	spoke up at meetings 	on the 	subject and 	that
some were much more 	caustic 	in their comments 	than the Charging
Party. 	According to one witness, 	compared to some officers 	the
Charging 	Party 	appeared very 	reasonable 	and 	reasoned 	in his
approach. 	The Charging Party confirmed that 	at 	least 	one 	officer
was 	more 	angry, 	vociferous 	and emotionally 	charged on this 	issue
than the Charging Party. 	I 	therefore, 	do not believe that the
Charging 	Party was 	singled out 	and 	treated 	in a disparate 	manner.
Nor 	is 	there 	evidence of 	any departure 	from 	standard
practices 	and procedures. 	The Charging Party appears 	to have
been given the due process 	rights he was 	entitled to. 	There 	is
no 	evidence 	supporting Charging 	Party's 	allegation that 	the
internal 	affairs 	investigating officer was 	selected by 	the Chief
because 	she had 	some 	ax 	to 	grind against 	the 	Charging 	Party 	or
because 	the 	investigating 	officers 	supported 	the Chief.
9

Nor 	is 	there 	any 	evidence of 	inconsistent 	or 	shifting
justifications 	ever being offered 	for Einheber's 	dismissal. 	Nor
are 	suspicions 	raised by the 	time proximity. 	Einheber's
protected 	activity took place 	almost 	six 	months 	prior 	to 	his
dismissal.
Finally, 	I wish to note the credibility of 	3 witnesses
because 	their testimony was 	instrumental 	in my 	reaching 	the
conclusions that 	I 	have reached. 	The testimony of all 	3 was 	very
credible 	and 	supported a 	finding 	that 	the 	Charging Party was
dismissed because of 	the November 	2 	incident and not because 	of
his 	protected 	activity.
The 	first was 	Lieutenant Beckford, 	a member of 	the Chief's
staff, 	who recommended the dismissal of Einheber. 	I 	found his
testimony 	forthright, 	very extemporaneous, 	and appearing to hide
nothing, 	even when it was 	clearly to his detriment. 	He
volunteered 	potentially damaging 	comments 	and 	freely 	admitted
that the Charging Party was 	a thorn in his 	side. 	Beckford,
however, 	also 	spoke eloquently about the 	trust police officers
are 	given and the 	responsibility that 	goes with that 	trust.
Beckford 	felt 	Einheber was 	an 	experienced 	senior 	officer within
the 	department who deliberately violated 	the 	trust 	given him,
thereby 	tarnishing the reputation of police 	in general 	and 	the
UCBPD, 	in particular. 	This 	seemed particularly upsetting to
Beckford, 	who 	felt the UCBPD 	is 	not always 	seen with the 	same
stature as municipal police departments, 	and that this 	incident
would be 	a 	setback for the department.
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Another particularly 	credible witness 	was 	Lieutenant 	Foley,
also on the Chief's 	staff, 	and who also recommended dismissal.
Foley 	testified 	credibly 	about 	his 	own personal 	views 	on the
amount of 	integrity necessary to be 	a good police officer. 	His
views were clearly 	long 	standing, 	deeply held, 	and well 	tested as
a new lieutenant years 	ago, 	when he made a 	similar recommendation
for dismissal 	of 	a different 	officer 	for a breach of 	integrity.
The 	third witness 	I 	found particularly 	credible was 	Pat
Forneret, 	also a member of the Chief's 	staff. 	I 	found her
credible, 	not because of 	the details 	she provided about the
dismissal 	discussion, 	because 	actually her recollection of
details was 	not at all clear. 	However, 	being the only non-sworn
manager at the meeting, 	she comes 	closer to being a disinterested
outsider than any of 	the others. 	It was her testimony about the
tone of the meeting, 	the solemn nature of the discussions, 	and
the difficulty of the other 	sworn managers, 	in deciding to
dismiss 	"one of their own" 	that 	I 	found very persuasive.
I 	therefore conclude, 	based upon the Charging Party's 	own
evidence, 	that he was terminated because of the November 2, 	1990
off-duty 	incident, 	rather than because he 	engaged 	in protected
conduct.
The 	University's 	motion to dismiss 	is 	therefore 	granted.
This 	complaint 	is 	DISMISSED.
Pursuant to California Code of Regulations, 	title 8,
section 32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions with the
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Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Reg., 	tit. 	8,
sec. 	32300.) 	A document is 	considered 	"filed" when actually
received before the close of business 	(5:00 p.m.) 	on the 	last day
set 	for filing 	". 	. 	. o r when sent by telegraph or certified or
Express 	United States mail, 	postmarked not 	later than the 	last
day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of Regs., 	title 8,
sec. 	3213 5; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must 	be 	served
concurrently with 	its 	filing upon each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served on a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	April 3, 	1992 	(
James W. Tamm
Administrative Law Judge
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