Regents of the University of California (Einheber) (PERB 0872H)

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-258-H
PERB Decision No. 	872-H
March 21, 	1991
Appearances: 	Jack Einheber, 	on his own behalf; 	Joyce Harlan,
Labor Relations 	Representative, 	for the Regents 	of 	the 	University
of 	California.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by
Jack 	Einheber 	(Einheber) 	to 	the 	attached proposed decision 	of 	a
PERB 	administrative 	law 	judge 	(ALJ).1 The proposed decision
dismissed 	the 	complaint which 	alleged 	the 	University 	of
California 	(UC) 	unlawfully 	retaliated against 	Einheber 	in
violation of 	section 	3571(a) 	of 	the 	Higher Education Employer-
Employee 	Relations Act 	(HEERA).2 The 	Board has 	reviewed 	the
1It 	should be 	noted 	a 	typographical 	error 	appears 	at
page 	18, 	footnote 	16 	of the proposed decision. 	The page number
referenced 	should be 	page 	707 	rather 	than page 	107.
N2 HEERA 	is 	codified 	at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Prior to January 	1, 	1990, 	HEERA section 	3571
stated, 	in pertinent part:
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entire record, 	the proposed decision, 	Einheber's exceptions, 	and
the UC's 	response thereto, 	and 	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.3
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.
The 	complaint 	in Case No. 	SF-CE-258-H 	is hereby DISMISSED.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
33 In regard to 	Einheber's 	claim that his 	letter to 	the
chancellor 	constituted protected conduct, 	we would also 	note 	the
Board's 	decision 	in California 	State 	University. 	Long Beach
(1987) 	PERB Decision No. 	641-H. 	The Board held that merely
including 	the 	name 	of 	a 	union representative 	among 	those
individuals 	receiving a 	copy of 	the 	correspondence does 	not,
without more evidence, 	constitute protected conduct.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JACK 	EINHEBER,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-258-H
PROPOSED 	DECISION
(10/22/90)
Appearances: 	Winslow & Fassler by Priscilla Winslow, 	Attorney,
for Jack Einheber; 	Joyce Harlan, 	Labor Relations Representative,
for the 	Regents 	of 	the 	University of 	California.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
An unsuccessful 	applicant 	for police 	sergeant 	contends 	here
that 	he was 	passed 	over 	for promotion because he 	filed 	grievances
and wrote a 	letter to the 	chancellor at Berkeley. 	The 	respondent
University 	of 	California 	argues 	that 	the 	Charging 	Party did 	not
participate 	in protected 	conduct 	and 	that 	his 	failure 	to 	be
promoted was 	unrelated 	to 	his 	filing of 	grievances 	or 	letter
writing.
Jack Einheber, 	a police officer at the University's 	Berkeley
campus, 	timely 	filed the 	charge which 	commenced this 	action on
April 	14, 	1987. 	The general counsel of the Public Employment
Relations Board 	(PERB or Board) 	followed on May 29, 	1987, 	with a
complaint against 	the Regents 	of 	the 	University of 	California
(University or Employer).
The 	complaint 	alleges 	that 	the 	University 	retaliated 	against
Jack Einheber by 	refusing to promote 	him to 	sergeant 	because 	he
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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wrote a 	letter to the Berkeley campus 	chancellor, 	and 	filed
various 	grievances 	against 	the 	Berkeley 	campus 	police 	department.
The 	complaint 	alleges 	that 	the denial 	of promotion was 	a
violation of 	Higher 	Education 	Employer-Employee 	Relations 	Act
section 	3571(a). 	The University 	filed an answer to the
complaint on June 	19, 	1987, 	denying that 	it had engaged 	in any
unfair practice 	in the 	treatment 	of 	Officer Einheber.
In addition to 	filing an unfair practice 	charge, 	Officer
Einheber 	also 	filed 	a 	grievance under 	the 	University's 	staff
personnel 	policy. 	The 	grievance 	alleged 	that 	Officer Einheber
was 	denied promotion 	in retaliation for 	filing a 	grievance.2
Under the University's 	internal procedures, 	the grievance went to
arbitration commencing April 28, 	1987.
1Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the Government Code. 	The 	Higher Education Employer-Employee
Relations Act 	(HEERA) 	is 	found at Government Code 	section 	3560
et 	seq. 	In relevant part, 	section 3571(a) 	provides as 	follows:
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. 	. 	. 	.
2Section 280.32 	of 	the University's 	staff personnel policy
provides as 	follows:
Reprisal
No 	employee 	shall 	be 	subject 	to 	reprisal 	for
using or participating 	in the 	grievance
process.
22

At the request of 	the parties, 	further processing of 	the
unfair practice case was placed in abeyance on July 28, 	1987, 	to
await 	the result of 	the 	arbitration. 	The 	arbitration was
conducted over nine nonconsecutive days, 	concluding on
September 20, 	1988. 	The arbitrator's award, 	denying the
grievance, 	was issued on June 30, 	1989.3
A hearing before 	the 	PERB was 	scheduled to 	commence 	in
October 	1989, 	but was 	cancelled at the request of the parties 	to
permit 	the 	University to 	file 	a motion 	for dismissal 	on a 	theory
of 	collateral 	estoppel. 	The motion was 	filed on October 	13,
1989, 	and was denied by the undersigned on November 	1, 	1989. 	On
February 20, 	1990, 	the parties agreed to submit the unfair
practice 	case 	on the basis 	of 	the 	record made 	in the 	arbitration
with possible 	supplementary witnesses. 	The parties 	agreed that
the 	undersigned 	should decide 	the 	issue 	of 	additional witnesses
after 	reading 	the 	transcript 	of 	the 	arbitration.4
Additional days 	of hearing were held on May 	5, 	1990, 	and
June 26, 	1990. 	With the 	filing of post-hearing briefs, 	the case
was 	submitted for decision on October 	10, 	1990.
3As 	stipulated by the parties, 	the 	issue before the
arbitrator was 	as 	follows:
Was 	the 	grievant denied promotion as 	a
reprisal 	for 	filing 	grievances 	in violation
of 	staff personnel policy 	section 	280.32? 	If
so, 	what is the appropriate remedy?
The 	arbitrator held 	that 	there had been no 	reprisal 	in the 	denial
of 	the promotion.
4The 	transcript 	of 	the 	arbitration and 	exhibits were
submitted to the undersigned on March 	16, 	1990.
33

FINDINGS 	OF 	FACT
The 	Respondent 	University of 	California 	is 	a higher
education employer under HEERA. 	At 	all 	times 	relevant,
Jack 	Einheber has 	been 	employed by 	the 	University 	as 	a police
officer 	at 	the 	Berkeley 	campus. 	During 	the 	relevant period,
there was 	no 	exclusive 	representative 	for 	campus 	police 	officers
at Berkeley. 	The Statewide 	University Police Association, 	the
one-time 	exclusive 	representative, 	had been decertified prior 	to
the events 	at 	issue.
Jack Einheber was 	hired 	as 	a 	Berkeley 	campus 	police 	officer
in 	1977. 	At the time he was 	hired he had a masters 	degree and
was working on a doctorate 	in 	education. 	He 	later received 	the
doctorate 	in 	1985. 	Over the nine years 	of his 	employment, 	prior
to 	the 	1986 	sergeant's 	exam, 	Officer Einheber developed a
reputation of 	having good 	"street 	smarts" 	and 	an uncanny 	ability
to be 	in the right place 	at the right time. 	H	5 	e had broken up a
ring 	of 	moped and bicycle 	thieves 	and was 	always 	one 	of 	the 	top
officers 	in productivity 	for 	citations 	and arrests. 	He was
considered quite 	good at developing 	informants. 	Several
witnesses 	described him as 	very 	intense 	in 	investigating 	crimes.
Officer 	Einheber also 	had 	a 	reputation 	for 	establishing 	a
good rapport with 	students. 	In addition, 	he was 	admired 	for
spending his 	own time working with 	juveniles whom he had 	arrested
5One witness 	described 	"street 	smarts" 	as 	the 	ability to
quickly 	determine 	that 	a 	crime 	may have 	occurred 	or be 	taking
place 	and to place yourself 	in the 	right position to 	apprehend
the 	suspect.
4

and their parents. 	He had received 	commendations 	for his work
with 	troubled 	students 	at 	the 	Berkeley 	campus.
Officer 	Einheber 	also 	developed 	a 	reputation 	for 	questioning
authority and being 	something of a 	loner. 	John Powell, 	a
sergeant who 	had 	supervised 	Einheber 	and whose 	testimony was
generally 	favorable 	toward him, 	said that 	all 	sergeants 	know that
they must be very 	careful 	in dealing with him. 	"If 	you're 	going
to put 	something down, 	you have 	to document whatever you're 	going
to 	say," 	Sergeant Powell 	testified.
Officer 	Einheber's 	reputation 	for being a 	loner 	apparently
is 	rooted 	in what 	others 	perceive as 	his 	general 	disinterest 	in
social 	activities 	among members 	of 	the department. 	"He wasn't
inclined 	to 	go 	out 	drinking with 	the 	boys 	after work and 	things
like that," 	Sergeant Powell testified. 	"Number one, 	Jack doesn't
drink, 	to my knowledge 	anyway 	. . . 	I 	just don't 	think that was
something 	that 	really 	interested 	him." 	Another witness 	described
Officer 	Einheber as 	one 	"going 	to 	the beat 	of 	a different
drummer."6
In the time prior to the 	1986 	sergeant's 	exam, 	there 	also
was 	a perception 	among 	some 	department 	supervisors 	that 	Officer
Einheber was 	not a good report writer. 	At one point 	early 	in his
career he had been marked down 	in an 	evaluation 	for his 	report
writing. 	In particular, 	he was 	criticized for 	inserting too much
opinion and psychological 	analysis 	into his 	report. 	Although
subsequent 	evaluations 	showed 	improvement 	in his 	report writing
6Lieutenant 	William 	Cooper.
55

ability, 	the perception of problems 	remained among 	some
supervisors.
In the years 	prior 	to 	the October 	1986 	sergeant's 	exam,
Officer 	Einheber 	filed 	three 	grievances 	and 	a 	complaint with 	the
Equal 	Employment Opportunity Commission 	(EEOC). 	The 	first of
these grievances was 	filed on February 	19, 	1980, 	and it
challenged 	a 	performance 	evaluation 	for 	Officer 	Einheber 	covering
the 	last 	four months 	of 	1979. 	Officer Einheber testified 	that he
filed 	the 	grievance 	because 	he 	believed 	the 	evaluation placed 	his
job 	in 	jeopardy. 	In addition to challenging the 	evaluation, 	the
grievance 	attacked what 	Officer 	Einheber 	viewed 	as 	improper
practices 	by 	certain department members. 	The 	grievance document
was 	a 	lengthy, 	single-spaced, 	typewritten exposition by Officer
Einheber which became known as 	"The 	Einheber Papers." 	The 	term
"Einheber Papers" 	ultimately became 	a 	kind of 	departmental
shorthand 	for describing 	anything 	lengthy 	and 	complicated.7 The
1980 	grievance was 	filed with then Chief William P. 	Beall, 	Jr.
Officer Einheber filed his 	next grievance on July 	2, 	1985.
This 	grievance 	challenged 	a 	low ranking 	that he 	received 	in an
evaluation that was 	completed as part 	of 	a 	University-wide 	civil
service 	examination 	for police 	sergeant. 	Officer Einheber
challenged 	the 	evaluation as 	being unfair and 	stated 	a 	belief
that 	his 	religion and national 	origin 	influenced 	the 	outcome.
This 	grievance was 	the 	first 	filed under Chief 	Derry Bowles.
7Sergeant 	Powell 	testified 	that whenever there 	is 	something
sensitive 	and of a 	large volume, 	people tend to describe 	it as
becoming 	another 	"Einheber 	Papers."
6

Chief 	Bowles was 	in office during 	the promotional process 	at
issue here.
Officer 	Einheber's 	third 	grievance was 	filed 	on January 	6,
1986. 	In it he 	challenged the department's 	failure to 	interview
him 	for 	a 	sergeant's 	position. 	After the 	January 	1986 	grievance,
Officer 	Einheber went 	to 	Chief 	Bowles 	and told him that 	the
grievance was 	"nothing personal." 	Officer 	Einheber 	testified
that 	the 	chief responded, 	"Okay, 	you've 	said what you've had to
say, 	that's 	it." 	Officer Einheber 	said the 	chief had never
before 	spoken to him 	in 	such a manner.
Officer 	Einheber 	filed his 	complaint with 	the 	EEOC 	on
July 28, 	1985. 	This 	complaint challenged the department's
failure 	to promote him and 	its 	denial 	of 	special 	assignments 	to
him. 	In the 	complaint, 	he alleged that the 	failure to promote
and the denial 	of 	special 	assignments were due 	to the
University's 	discrimination against 	him because 	of 	his 	religion
and 	national 	origin.
In addition to the 	filing of 	grievances, 	Officer Einheber
also 	contends 	that he 	engaged 	in protected 	conduct 	by 	sending 	a
letter to the Berkeley campus 	chancellor on August 22, 	1986. 	The
letter, 	addressed to Ira M. 	Heyman, 	is a three-page, 	typewritten,
single-spaced 	document 	on 	the 	letterhead 	of 	the 	Berkeley 	campus
police department. 	In the 	letter, 	Officer Einheber urges 	the
chancellor 	to 	reject 	the 	creation of 	a 	civilian review board 	for
the 	Berkeley 	campus 	police department. 	The 	letter recites
7

various 	reasons why the 	creation of 	a 	civilian review board would
have 	a 	negative 	effect 	on the 	campus police department.
Prior to writing his 	letter to the chief, 	Officer Einheber
consulted with 	Sergeant 	John Powell, 	an 	executive board member 	of
the 	University Police Association. 	The organization is 	a
non-exclusive representative, 	employee group. 	Sergeant Powell
testified that 	Officer Einheber 	asked 	if 	it was 	appropriate 	for
Einheber 	"to write a letter to the Chancellor. 	. 	. 	discussing his
personal 	views 	on the 	subject." 	[emphasis 	supplied] 	Sergeant
Powell 	told 	Officer 	Einheber he believed 	Einheber 	"had 	a 	right 	to
send 	such a 	letter 	since 	a 	[police 	review board] 	would ultimately
impact 	upon him as 	an employee."8 Officer 	Einheber 	later 	showed
a 	copy of 	the 	letter to Powell and Sergeant Brant, 	both of whom
offered 	suggestions. 	Although the 	letter 	shows 	the president 	of
the University Police Officers' 	Association as 	the recipient of 	a
copy, 	the 	letter does 	not purport to be written on behalf 	of 	that
group.
Officer 	Einheber testified 	that 	he was 	told by 	Sergeant
Barbara 	Buchanan that Chief 	Bowles was 	"pretty upset" 	about 	the
letter. 	However, 	Sergeant Buchanan testified that the 	chief's
reaction was 	not 	"particularly angry" 	and 	that he 	said he wished
Officer 	Einheber would have 	"slipped him a 	copy 	of 	the 	letter"
before he 	sent 	it to the 	chancellor. 	The 	chief testified that
88 Sergeant Powell's 	recollection of 	this 	event 	is 	set out 	in
Grievant's Exhibit No. 	60. 	Although this document is hearsay,
Sergeant 	Powell was 	later called as 	a witness 	to verify his
written 	comments 	and 	to 	make 	himself 	available 	for
cross-examination. 	See R.T. 	for June 22, 	1988, 	at p. 	957.
8

10
his 	only objection was 	the use 	of 	departmental 	stationery. 	He
also 	said 	that 	if 	Officer 	Einheber had discussed 	the 	letter with
him and 	others, 	they 	could have provided 	information to make 	it
stronger. 	Chief 	Bowles 	later told Officer Einheber that 	any
letter 	on department 	stationery 	should 	have 	gone 	through 	the
chief's 	office 	first.
Subsequent to the events 	at 	issue, 	the University 	initiated
a 	new 	systemwide 	procedure 	for 	selecting 	candidates 	for promotion
to 	sergeant. 	Candidates 	first 	are 	screened through a 	multiple
choice written exam. 	Those who pass 	the 	exam then 	complete 	a
written 	simulation 	exercise. 	Those who 	successfully 	complete 	the
In a 	second letter to Chancellor Heyman, 	Officer Einheber
made 	it clear that his 	letter of August 	22, 	1986, 	was 	a purely
personal 	expression of views. 	In a 	letter of September 	5, 	1986,
which 	further outlines 	his 	views 	on a police review board,
Officer 	Einheber wrote:
I 	also believe 	it 	appropriate 	to 	inform you
that my August 	22, 	1986 	letter to you was
written 	on 	University 	of 	California 	Police
Interdepartmental 	Letterhead 	through
oversight. 	I was 	out of town when the 	letter
was 	typed and 	I 	had 	failed to provide 	the
typist with adequate 	instruction before 	I
left. 	Thus, 	none of the material 	in this
letter or the August 	22, 	1986 	letter 	should
be 	construed 	to 	represent 	other 	than my 	own
personal 	opinion. 	[emphasis 	supplied]
Police 	sergeants 	at 	all 	nine 	University of 	California
campuses 	are promoted 	from a 	single 	eligibility 	list.
Approximately once 	every three years, 	a notice of 	testing 	is 	sent
to 	each 	campus. 	During the relevant period, 	the test consisted
of 	a written examination, 	a 	service performance 	rating and an
oral 	interview.9 Typically, 	about 	100 police officers 	take the
9

test. 	Once a 	list 	is 	established 	it 	is 	usually good 	for two
years 	but 	can be 	extended a 	third year. 	Police 	officers who 	rank
high on the 	sergeant's 	list 	are 	not always 	promoted. 	Sometimes
there 	is 	no vacancy on their own campus 	and they are 	unwilling to
transfer to another campus. 	At other times 	officers 	are 	simply
passed 	over.
The 	eligibility 	list which was 	used 	in the 	1986 	promotional
process 	at Berkeley, 	was 	first established in 	1984. 	At the time
the 	list 	initially was 	published, 	Officer Einheber ranked 	26 	out
of 	93 	successful 	applicants. 	Following a 	subsequent audit of 	the
exam, 	the rankings were 	shifted and Officer Einheber became
number 2 9 out of 93 applicants.
The 	University's 	systemwide policy 	for promotion of 	police
sergeants 	and 	lieutenants 	permits 	the 	campus 	chief 	to appoint
from among the 	top 	five 	candidates 	by 	either of 	two methods. 	The
chief 	may 	immediately appoint 	any 	candidate who 	ranks 	in the 	top
five and 	is 	employed on the campus with the vacancy. 	Or, 	the
chief 	may 	interview 	in person or by phone 	as 	many 	candidates 	as
required 	to 	have 	five 	candidates 	available 	for 	consideration 	and
selection. 	The 	top 	five 	interested 	in the position are 	not
necessarily 	the 	top 	five 	on the 	list because many qualified
candidates 	turn down positions 	because 	they do 	not want 	to 	move
or 	are 	otherwise 	uninterested.
9written exercise 	are 	next 	evaluated 	in assessment 	center
exercises 	designed to 	simulate 	essential 	job duties. 	Interviews
have been abandoned 	as 	part 	of 	the 	systemwide 	testing procedure
although 	the 	Berkeley 	campus 	still 	interviews 	successful
candidates 	before deciding which to promote.
10

By 	March 	of 	1986 	Officer 	Einheber had 	advanced 	to 	number
eight on the 	sergeant's 	eligibility list. 	He was 	the highest
ranking Berkeley candidate 	on the 	list. 	Those 	above him were
employed on the 	San Diego, 	Davis 	and Los Angeles 	campuses 	of 	the
University. 	For a number of years, 	prior even to the enactment
of HEERA in July 	1979, 	the prevailing practice at Berkeley was
for 	sergeant's 	positions 	to be 	filled by appointment 	of 	the
highest 	eligible Berkeley 	candidate. 	Where 	a 	Berkeley 	candidate
was within the 	top 	five 	systemwide, 	that 	candidate 	typically
would be 	appointed 	to 	the 	next 	available 	sergeant's 	position 	at
Berkeley. 	This 	practice was 	continued under Chief 	Bowles 	and
remained 	in effect until 	the 	fall 	of 	1986.10
In the 	fall of 	1986, 	Chief Bowles decided to change the
process 	for appointing 	sergeants 	at Berkeley. 	Rather than
appoint 	the highest 	ranking Berkeley candidate, 	Officer Einheber,
Chief 	Bowles 	established a three-tier 	interview process. 	The
candidates would be 	interviewed by a panel 	of 	lieutenants, 	the
two assistant chiefs, 	and the 	chief. 	The 	selection would be made
10There was 	evidence of 	three 	exceptions 	over a 	17-year
period, 	twice under the prior chief, 	William Beall, 	and once
under Chief Bowles. 	Some time prior to 	1977, 	Chief Beall
promoted 	an officer 	to 	sergeant 	over a 	higher 	ranked 	candidate
named John Powell. 	In 	1979, 	Chief 	Beall 	authorized the transfer
of 	Sergeant William Foley 	from the 	Davis 	campus 	to 	fill 	a
sergeant's 	position at Berkeley, 	bypassing two 	Berkeley officers
on the promotion list. 	The 	single 	exception under Chief 	Bowles
occurred on December 	16, 	1985, 	when two Berkeley police officers
were promoted to 	the 	rank of 	sergeant, 	Theodore Greczyn and 	Leroy
Pereira. 	Greczyn ranked 	eighth on the 	eligibility 	list 	and
Pereira 	ranked 	ninth. 	Although both promotions were 	made 	on the
same day, 	Pereira's was 	made before Greczyn for 	seniority
purposes.
11

following the 	interviews. 	The 	system 	is 	similar to the 	system
used 	at 	Berkeley 	for 	selection of 	lieutenants.
The procedure 	for 	filing vacancies 	for 	sergeant was 	changed
after Chief 	Bowles 	raised the 	issue 	at 	a meeting of 	lieutenants
in October 	1986. 	A resignation had 	created an opening 	for a
sergeant 	and the 	chief 	inquired of 	the others 	how the 	next
appointment 	should be made. 	Lieutenant 	Howard 	Hickman mentioned
the past practice 	and 	suggested the 	appointment 	of 	Officer
Einheber. 	Others 	suggested 	that 	they 	should take 	a 	look at
"what's 	out 	there" 	before making a decision.
Assistant 	Chief Victoria 	Harrison 	then 	recommended
conversion to 	the 	three-tier 	interview process. 	Both Chief
Bowles 	and Assistant 	Chief 	Harrison had 	formerly worked 	together
at 	the University's 	Santa Barbara 	campus where 	a 	three-tier
interview process 	is 	employed. 	Assistant Chief 	Harrison 	said 	she
recommended 	the 	change 	to 	bring 	Berkeley 	into 	conformity with
what had become 	a practice 	on other campuses.
A notice was 	posted 	on 	all 	nine 	campuses 	about 	the 	vacancy
for a 	sergeant at Berkeley. 	Letters were 	sent 	to all 	candidates
at 	the top 	of 	the 	eligibility 	list 	to 	inquire 	about 	their
interest. 	As 	a result of the posting and letters, 	a pool 	of
seven candidates was 	established, 	two 	from Davis, 	one 	from
San Diego, 	two 	from Berkeley, 	and two 	sergeants 	from other
campuses 	who 	indicated an 	interest 	in transferring 	to 	Berkeley.
Collectively, 	the various 	interviewers 	testified that 	they
wanted a 	sergeant who was 	articulate, 	a 	leader and a 	team player.
12

They 	also wanted 	a 	candidate who 	demonstrated 	command presence,
self-confidence, 	interpersonal skills, 	good judgment, 	job
knowledge, 	and credibility. 	Finally, 	they wanted someone who
understood 	the 	role 	of 	the 	sergeant 	and 	understood 	the
difficulties 	they perceived 	in making 	the 	transition 	from 	officer
to 	supervisor.
It 	is 	clear 	from the 	testimony that 	there were 	opponents 	to
the promotion of Officer Einheber, 	prior even to the 	interviews.
Lieutenant 	William Cooper 	testified 	that 	he 	had 	a 	negative
perception of 	Einheber's 	potential 	as 	a 	sergeant before 	the
interview, 	and nothing 	changed after it. 	He testified that he
did 	not 	believe Officer 	Einheber had demonstrated 	the 	skills 	and
qualifications 	expected 	in a 	sergeant. 	Assistant Chief 	Harrison
testified 	that 	she 	had 	heard anti-Einheber 	comments 	before 	the
interviews 	from several 	sergeants. 	Sergeant Sarah Ferrandini, 	a
friend of Assistant Chief 	Harrison, 	was 	quoted as 	saying prior 	to
the 	interviews 	that 	"Jack was 	not 	going to be 	selected 	sergeant."
By the 	time of 	the 	interviews, 	Officer Einheber had moved to
first 	on the 	list. 	All 	seven officers 	ranked above him had
waived 	interest 	in the Berkeley 	sergeant's position. 	By removing
themselves 	from consideration, 	the higher-ranking 	candidates
allowed Officer Einheber to move 	to 	first place.
Various 	witnesses 	testified 	about 	Officer 	Einheber's
performance in the October 23, 	1986, 	interviews. 	Witnesses who
attended 	his 	interview with 	the 	lieutenants 	criticized 	his
appearance, 	his 	answers 	and his preparation. 	Several 	of his
13

answers 	in particular were received negatively. 	Asked 	if 	he had
any hobbies, 	Officer Einheber replied, 	"I 	like to watch women."11
Lieutenant 	Ellen Stetson described his 	response 	as 	lacking 	in
good 	judgment.
Following his 	comment about watching women, 	a panel member
asked Officer Einheber 	about 	his 	view of women 	in 	law
enforcement. 	He replied that 	if a woman has 	an adequate upper
body 	strength 	to perform the 	job then he 	has 	no 	criticism.
However, 	he 	expressed a belief that 	some women in the department
were 	inadequate 	for the 	arrest 	team because 	they did 	not 	have
sufficient upper body 	strength. 	He made 	a 	comparison to his
girlfriend whom he described 	as 	capable 	of 	doing 	60 	push-ups 	and
10 pull-ups. 	He 	said that 	she was 	strong enough 	for the
position. 	Lieutenant Stetson described the 	comments 	as
"shocking" 	and 	said 	that 	they 	showed 	a 	lack of 	sensitivity 	since
there was 	a woman 	sitting right 	in 	front of 	him.12
Several 	of 	the 	lieutenants 	also were 	unimpressed by
Officer 	Einheber's 	answer 	to 	a 	question about 	how he might
improve patrolling of the 	campus. 	He 	suggested 	surveillance 	from
some 	high 	structure 	like 	the 	campanile 	from which 	an officer
11There are various 	versions 	in the 	record of 	his 	exact
remark. 	One version is that he 	said, 	"I 	like to watch girls."
Officer 	Einheber testified he recalls 	saying 	"I 	like women." 	He
described his 	response as 	a 	joke.
12Regardless 	of his 	comments 	about women in the 	interview,
none 	of 	the witnesses 	testified 	that 	they had 	ever 	seen 	any
evidence 	that Officer Einheber treats 	female 	co-workers 	in a
sexist 	manner or 	that 	he had 	any on-the-job problems 	with 	female
officers.
14

could report 	on any 	criminal 	activity below. 	Two 	lieutenants
testified 	that 	random 	surveillance 	from high 	structures 	on 	the
campus 	about 	activity below would 	be 	very 	negatively 	received 	by
the 	campus 	community. 	Lieutenant William Cooper 	said 	the 	answer
showed a 	lack of understanding about 	campus 	realities.
The 	two 	assistant 	chiefs 	also were highly 	critical 	of
Officer 	Einheber's 	appearance 	and answers 	at 	their 	interview with
him. 	Assistant Chief Foley described Einheber's 	attire 	as
inappropriate 	for an 	interview. 	He 	said Officer Einheber wore 	a
parka 	jacket with 	a 	clip-on tie 	and a 	shirt 	that did not 	seem to
fit.13 Lieutenant 	Foley 	said 	that 	Officer 	Einheber 	slouched 	in
his 	chair 	and 	looked 	at 	the 	floor 	and 	never made 	good 	eye
contact. 	Assistant Chief 	Harrison 	said 	that Officer Einheber's
failure 	to make 	good 	eye 	contact during 	the 	interview did 	not
instill 	confidence that he was 	in control.
Both assistant 	chiefs 	were 	critical 	of 	Officer Einheber's
response 	to 	a 	question about whether he 	could be a 	team player.
Lieutenant 	Foley 	interpreted 	Officer 	Einheber's 	answer 	as 	an
indication that he 	considered himself 	"standoffish" 	and 	to 	an
extent 	a 	loner. 	Lieutenant Foley 	said this would run counter to
the department's 	goals 	of building a team. 	Lieutenant Harrison
interpreted 	Officer 	Einheber's 	answer as 	a 	statement 	that 	he
"tended 	to do his 	own thing." 	She 	said that teamwork 	is
important because police 	officers 	have 	to back each other up.
13Officer 	Einheber 	said he dressed 	casually because 	in 	a
previous 	interview he was 	criticized 	for being 	too 	formal while
wearing a 	three-piece 	suit.
15

She 	interpreted his 	answer 	as 	an 	indication that 	he would 	not
become 	involved 	in 	internal 	discussions 	among 	sergeants 	but would
keep to himself.
Both 	assistant 	chiefs 	described Officer Einheber 	as 	not
prepared. 	Lieutenant 	Harrison 	said that he 	rambled 	in his
responses 	and did 	not 	seem 	in touch with 	real 	issues 	facing 	the
Berkeley campus 	police department. 	Assistant Chief 	Foley
described Officer 	Einheber's 	answers 	as 	shallow.14
Chief 	Bowles 	testified 	that 	he 	similarly was 	unimpressed
with Officer Einheber's performance 	in the 	interview. 	He 	also
faulted Officer Einheber's 	appearance 	and 	eye 	contact, 	which he
said did not 	indicate 	strength 	in 	leadership. 	He described
Officer 	Einheber's 	answers 	to 	questions 	about 	dealing with 	youth
gangs 	and mid-campus 	crime problems 	as 	unworkable 	and 	lacking 	in
judgment. 	He 	said that when he 	asked Officer Einheber what he
would do with an order that he disagreed with, 	Einheber responded
that he would be quiet. 	The 	chief 	testified that he 	felt 	this
indicated 	Officer 	Einheber would 	not 	support 	him 	strongly.
Neither 	the 	lieutenants 	nor 	the 	assistant 	chiefs 	ranked 	the
candidates 	following the 	interviews. 	They did discuss 	the
candidates 	following the 	completion of 	the 	interviews 	but 	they
did 	not 	record 	their views 	in any 	formalized manner. 	Ultimately,
a 	joint post-interview discussion was 	held 	among 	all who
14Assistant 	Chief 	Foley's 	testimony 	is 	consistent with what
he 	told 	Officer 	Einheber 	in a 	recorded meeting 	after
Officer Einheber 	failed to 	get 	the promotion. 	See Grievant's
Exhibit 	13.
16

participated 	in the 	interviews. 	During 	the meeting 	each
participant 	discussed 	each 	candidate 	and 	gave 	an 	opinion 	about
the 	candidate. 	The participants 	to 	the 	discussion testified that
there was 	not much difference 	in views. 	They all placed Officer
Einheber 	either 	last 	or next to 	last. 	Several 	expressed 	surprise
that he did not do better in the 	interviews. 	No one recommended
that 	Officer 	Einheber be 	selected 	for 	the 	sergeant's 	position.15
The promotion to 	sergeant was 	given to Shaun Donelson, 	an
officer 	from the 	University's 	San Diego 	campus. 	Various
witnesses 	described him as 	articulate 	and well prepared. 	He had
acted as 	a 	corporal 	in San Diego which gave him 	some time 	as 	an
acting 	supervisor. 	There was 	a 	general 	perception that he
presented 	himself 	far more professionally 	than 	the 	other
candidates. 	The witnesses 	testified that Officer Donelson
displayed more openness 	and ability to 	communicate. 	Witnesses
described Donelson as 	maintaining good eye 	contact, 	projecting 	a
sense 	of 	humor and making a 	good overall 	impression.1616
15 Officer Einheber testified that his 	showing 	in the
interview' s 	was 	affected by 	a 	rigorous 	training program that 	he
had 	completed 	the week before 	the 	interview and 	a 	14-hour day 	he
had worked 	immediately prior 	to 	it.
16The 	Charging 	Party 	submitted 	testimony 	about 	problems 	in
the work performance 	of 	Sergeant 	Donelson after he 	received 	the
position. 	Several witnesses 	testified about particular
situations 	in which he performed 	in a 	manner they 	viewed 	as
improper. 	On October 	12, 	1987, 	Sergeant Donelson resigned his
position as 	sergeant 	at 	Berkeley 	and 	returned 	to 	San Diego 	as 	an
officer.
I 	find 	information 	regarding 	Sergeant 	Donelson's 	performance
irrelevant 	to 	the 	question of why Officer Einheber was 	passed
over 	for the 	sergeant's 	position. 	Any problems which 	later
occurred 	in 	Sergeant 	Donelson's 	work performance 	could 	not 	have
17

Donelson's 	appointment was 	announced 	sometime 	in the week between
the October 2 3 	interviews and Officer Einheber's October 	31
meeting with Assistant 	Chief 	Foley 	to 	find 	out why he was 	passed
over.
been known by 	the persons 	who 	evaluated 	the 	candidates 	in
October 	1986. 	In this regard I 	share the views 	of the
arbitrator, 	Bonnie Bogue, 	which are 	set out at page 	107 	of the
transcript 	for the 	seventh day of 	the 	arbitration.
In 	an 	effort 	to 	show retaliatory 	intent by 	the 	University,
the 	Charging 	Party presented 	evidence 	of what 	he 	considered
retaliatory actions 	taken against other officers. 	Officer John
Edmands 	testified 	that 	his 	relationship with the 	chief 	became
strained 	after he 	opposed 	the 	chief's 	plan 	to 	ban pain 	compliance
techniques.
The practice 	at 	Berkeley 	for 	removing 	recalcitrant
demonstrators 	had been to apply pain to 	their arms. 	The 	chief
proposed 	a 	system whereby officers would drag demonstrators, 	roll
them onto 	blankets 	and 	carry 	them away. 	Officer 	Edmands 	opposed
this 	because he believed 	it would 	cause back injuries 	to 	the
officers. 	He 	arranged 	for a meeting between the 	chief 	and
approximately 2 5 or 2 6 officers on campus at Alumni House. 	The
officers 	as 	a 	group were 	absolutely opposed to the use of
blankets 	and 	carrying the demonstrators 	away. 	Most 	of 	the
officers 	who 	attended the meeting were highly 	critical 	of 	the
chief, 	including Officer Edmands.17 After the meeting, 	Officer
17Chief 	Bowles 	testified 	that he was 	so 	depressed by 	the
meeting 	that he was 	thinking of 	quitting 	until 	the 	chancellor
talked him out 	of 	it.
18

Edmands 	testified, 	the 	chief 	stopped talking to him 	in the
hallway 	and would 	not 	initiate 	any 	conversations 	with 	him.
Office 	David Brauneker, 	a 	Berkeley 	campus 	sergeant until 	he
resigned 	from the position in July 	1987, 	described a
confrontation he had with the 	chief 	in December 	1983. 	The 	chief
had directed all 	sergeants 	to 	attend a meeting at 	a 	Half 	Moon Bay
retreat. 	They were to be there 	24 	hours 	a day, 	although they
would be paid 	for only 	8 	hours. 	Brauneker demanded 	full pay 	and
testified 	that 	he 	got 	into 	a 	heated discussion with 	the 	chief
about the 	issue. 	When attendance at the retreat was made
voluntary, 	Brauneker refused to attend. 	Officer Brauneker
testified 	that 	thereafter he was 	removed 	from participation 	on 	an
oral panel 	for 	interviewing police 	officers. 	He 	said that he
found out 	that 	the 	chief 	took his 	name off 	the panel 	because 	the
chief 	said he did not have 	experience 	to 	serve 	on the panel.
Officer 	Brauneker 	testified 	that 	he 	had 	another
confrontation with 	the 	chief 	over 	an 	incident 	in which 	a 	trainee
was 	incorrectly reprimanded 	and warned 	of 	dismissal. 	Sergeant
Brauneker was 	the platoon 	sergeant 	for two trainees, 	one of whom
was 	"breezing 	through" 	the 	program and 	the 	other who 	looked 	like
he was 	not 	going to make 	it. 	Chief Bowles 	decided that the 	one
who was 	not 	doing well 	should be 	spoken 	to 	very 	forcefully 	and
advised 	that 	if he did not 	improve he would be 	terminated.
However, 	Brauneker testified, 	Chief Bowles 	confused the two
names. 	As 	a result the wrong trainee was 	chastised. 	Brauneker
said when he 	learned of 	this 	mix-up he was 	very 	angry 	and
19

complained to 	all who were 	involved 	in the 	incident. 	Thereafter
he was 	reassigned 	for two weeks 	to 	another platoon because 	the
chief 	said he 	did 	not 	know how to 	get 	along with people.
In November 	1987, 	a new statewide 	list 	for sergeants was
developed. 	Officer Einheber ranked first, 	statewide, 	on the
list. 	As 	of the 	last day of the hearing, 	Officer Einheber had
not been promoted to 	the position of 	sergeant.
LEGAL 	ISSUE
Did 	the 	University 	of 	California 	refuse 	to promote 	Jack
Einheber to 	the position of police 	sergeant 	in retaliation 	for
protected activities, 	and thereby violate 	section 	3571(a)?
CONCLUSIONS 	OF 	LAW
Higher 	education employees 	have 	the protected 	"right 	to
form, 	join and participate 	in the activities 	of 	employee
organizations 	of 	their own choosing 	for 	the purpose 	of
representation 	on all 	matters 	of 	employer-employee
relations 	. 	. 	. 	."
18
Under section 3571(a), 	it is unlawful for a
18HEERA 	section 	3565 provides 	in its 	entirety as 	follows:
Higher 	education 	employees 	shall 	have 	the
right to 	form, 	join and participate 	in the
activities 	of 	employee organizations 	of 	their
own choosing 	for the purpose of
representation on all 	matters 	of
employer-employee 	relations 	and 	for the
purpose 	of 	meeting and 	conferring. 	Higher
education employees 	shall 	also have 	the 	right
to 	refuse 	to 	join employee 	organizations 	or
to participate 	in the 	activities 	of 	these
organizations 	subject 	to 	the 	organizational
security provision permissible 	under 	this
chapter.
20

higher education employer to 	"[i]mpose 	. 	. 	. 	reprisals on
employees, 	to discriminate 	. . . 	or otherwise to 	interfere with,
restrain, 	or coerce 	employees 	because of 	their exercise of
[protected] 	rights 	."
In order to prove an allegation of discrimination, 	the
charging party 	must 	first 	demonstrate 	that 	the 	aggrieved 	employee
engaged 	in protected 	conduct. 	The 	charging party must 	then 	show
that 	the 	employer knew of 	the 	employee's 	protected act19 and 	that
the 	employer 	took an adverse 	action against 	the 	employee. 	The
adverse 	action cannot be 	speculative but must be 	an actual 	harm.
Palo Verde Unified School District 	(1988) 	PERB Decision No. 	689.
Upon a 	showing of protected 	conduct and adverse 	action, 	the
party 	alleging discrimination must 	then make 	a prima 	facie
showing 	of 	unlawful 	motivation. 	Under Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210, 	unlawful motivation within
the meaning of 	section 	3543.5(a) 	occurs where the employer's
action 	against 	the 	employee was 	motivated by the 	employee's
participation 	in protected 	conduct.
20
19Moreland Elementary 	School 	District 	(1982) 	PERB 	Decision
No. 227.
20
Indications 	of 	unlawful 	motivation have been 	found 	in many
aspects 	of 	an employer's 	conduct. 	Words 	indicating retaliatory
intent 	can be persuasive 	evidence 	of unlawful motivation. 	Santa
Clara Unified School District 	(1979) 	PERB Decision No. 	104.
Other 	indications 	of 	unlawful 	motivation have 	been 	found 	in 	an
employer's: 	failure to follow usual procedures, 	Santa Clara
Unified School District 	(1979) 	PERB Decision No. 	104; 	shifting
justifications 	and cursory 	investigation, 	State 	of 	California
(Department of Parks and Recreation) 	(1983) 	PERB Decision No.
328-S; 	disparate treatment of a union adherent, 	State of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S; 	timing of the action, 	North Sacramento School District
21

(1982) 	PERB Decision No. 	264; 	and pattern of antagonism toward
the union, 	Cupertino Union Elementary School District 	(1986) 	PERB
Decision No. 	572.
The 	test 	adopted by 	the 	Board 	is 	consistent with other
California and federal precedent. 	Under this precedent, 	the
trier 	of 	fact 	is 	required 	to weigh both 	direct 	and 	circumstantial
evidence 	to 	determine whether 	an action would 	not 	have 	been taken
against 	an employee but 	for the 	exercise 	of protected rights.
See Martori 	Brothers 	Distributors 	v. 	Agricultural 	Labor Relations
Board 	(1981) 	29 Cal.3d 721, 	727-730 	[175 Cal.Rptr. 	626]; 	Wright
Line. 	Inc. 	(1980) 	251 NLRB 	1083 	[105 LRRM 1169] 	enf., 	in relevant
part, 	(1st Cir. 	1981) 	662 F.2d 899 	[108 LRRM 2513]. 	This test
was 	adopted 	for higher 	education 	employees 	in California 	State
University 	(1982) 	PERB Decision No. 	211-H.
After the 	charging party has 	made 	a prima 	facie 	showing
sufficient to 	support an inference of unlawful motive, 	the burden
shifts 	to 	the respondent to produce 	evidence that the action
"would have 	occurred 	in any 	event." 	Martori 	Brothers
Distributors v. 	Agricultural Labor Relations 	Bd., 	supra.
29 Cal.3d at 	730. 	Once employer misconduct is demonstrated, 	the
employer's 	action,
. 	. 	. 	should not be deemed an unfair labor
practice 	unless 	the 	board determines 	that 	the
employee would have 	been retained 	"but 	for"
his 	union membership or his 	performance 	of
other protected 	activities. 	(Ibid.)
The 	University bases 	its 	primary defense 	on a 	contention
that 	Officer 	Einheber did 	not participate 	in protected 	conduct 	as
22

defined 	in HEERA. 	The 	University argues 	that 	the 	filing of 	an
individual 	grievance 	under 	the 	University's 	internal 	personnel
policies 	is 	not protected conduct. 	Such an individual 	grievance,
the University argues, 	does 	not meet the 	statutory requirement of
participation 	in the 	activities 	of 	an employee 	organization. 	The
University 	argues 	that 	the 	PERB has 	not 	directly ruled 	on the
question and 	that 	the 	Board has 	specifically declared 	the 	issue
to be unresolved. 	University of 	California 	(1987) 	PERB Decision
No. 615-H.
Officer 	Einheber 	finds 	protected 	conduct 	in various
grievances 	which he 	has 	filed under 	the 	University's 	internal
grievance procedures. 	He argues 	that previous 	PERB decisions
strongly 	imply 	the 	filing 	of 	grievances 	under 	the 	University's
internal 	grievance procedure 	is 	protected 	activity.21 He 	finds
this 	consistent with HEERA 	statutory 	language 	in which he 	finds
specific 	protection 	for the 	filing of 	grievances. 	As 	an
additional 	theory, 	he also 	finds protected conduct 	in a 	letter he
wrote 	to 	the 	Berkeley 	campus 	chancellor regarding 	the police
21In support of this 	proposition, 	Officer Einheber quotes
from Regents 	of the University of California, 	supra, 	PERB
- -
Decision No. 	615-H. 	But his quotation of the Board's words 	is
selective. 	He 	ignores 	the 	following comment:
. 	. 	. 	UC's failure in this case to except on
appeal 	to the ALJ's 	finding of protected
activity, 	and the 	consequent 	lack of briefing
on this 	significant 	issue, 	make us unwilling
to reverse those 	findings 	sua 	sponte.- - -
Therefore, 	we will assume without deciding
for purposes 	of 	this 	case that 	[the Charging
Party's] 	filing of the UC appeal pursuant to
a 	nonnegotiated 	grievance 	procedure 	was
protected 	conduct 	under 	HEERA.
23

review board. 	The 	letter, 	he argues, 	was written on behalf of
others 	and was 	thus 	a 	form of 	concerted 	activity.
PERB decisions 	have 	afforded protection to 	employee
grievances 	and complaints 	in two 	situations: 	1) 	Where the
grievance 	constituted participation 	in the 	activities 	of 	an
employee organization, 	and 2) 	where the employee was 	representing
himself 	individually 	in accord with a 	specific 	statutory 	right.
Thus, 	the Board has 	held the 	filing of 	a grievance under a
collective 	bargaining contract 	to be protected. 	This 	is 	because
the 	assertion of 	a 	right 	contained 	in a 	collective 	bargaining
agreement 	"is 	an 	extension of 	the 	concerted 	action that produced
the agreement" 	and 	its 	assertion 	"affects 	the rights 	of 	all
employees 	covered by 	. . . 	the 	agreement." 	NLRB v. 	City 	Disposal
Systems 	(1984) 	465 U.S. 	822, 	829 	[115 LRRM 3193]. 	See also,
North Sacramento School District 	(1982) 	PERB Decision No. 	264.
Here, 	however, 	there was no exclusive representative for
campus 	police 	and 	no 	collective bargaining 	agreement 	at 	any 	time
relevant. 	Officer Einheber's 	various 	grievances were 	filed under
a University policy, 	not a collective agreement. 	Accordingly,
all 	Board decisions 	affording protected 	status 	to 	grievances
filed under 	contractual 	provisions 	are 	inapplicable 	to 	Officer
Einheber's 	grievances.
Aside 	from a 	contractual 	grievance, 	an employee's 	action
still 	might 	qualify 	as 	organizational 	activity 	if 	"engaged 	in
with or on 	the 	authority of 	other 	employees, 	and not 	solely by
and on behalf 	of the 	employee himself." 	Meyers 	Industries. 	Inc.
24

(1986) 	281 NLRB 882 	[123 LRRM 	1137, 	1141].22 This rationale was
adopted by the PERB 	in Regents 	of 	the University of 	California
(1984) 	PERB Decision No. 	449-H. 	(See pp. 	95-97 of the
Board-adopted Administrative 	Law 	Judge's 	opinion.)
However, 	an examination of Officer Einheber's 	grievances
shows 	that 	they were 	entirely personal 	in nature. 	The 	grievance
of February 	19, 	1980, 	challenged a performance 	evaluation given
to Officer Einheber 	for the 	last 	four months 	of 	1979. 	The
grievance of July 2, 	1985, 	challenged the 	low ranking Officer
Einheber 	received 	in an 	evaluation 	completed as 	part 	of 	a 	civil
service 	examination for 	sergeant. 	The 	grievance of 	January 	6,
1986, 	challenged the department's 	failure to 	interview Officer
Einheber 	for a 	sergeant's 	position. 	Each of these grievances was
filed 	solely by, 	and for, 	Officer Einheber himself.
In 	support of his 	assertion of protected conduct, 	Officer
Einheber relies primarily on his August 	22, 	1986, 	letter to the
Berkeley campus 	chancellor. 	This 	letter, 	he contends, 	was
written 	in protest 	of 	a policy 	that would have 	affected working
conditions 	of 	all police officers 	in the department. 	He 	argues
that he 	showed the 	letter to others 	and wrote 	it with their 	tacit
approval 	and 	overwhelmingly positive 	feedback.
22The National 	Labor Relations 	Board 	first 	set out 	this 	rule
in Meyers Industries. 	Inc. 	(1984) 	268 NLRB 493 	[115 LRRM 1025].
However, 	this 	decision was 	remanded to the NLRB 	for 	further
consideration, 	Prill v. 	NLRB 	(D.C. 	Cir., 	1985) 	775 F.2d 933 	[118
LRRM 2649], 	in light of the Supreme Court's decision in NLRB v.
City Disposal Systems, 	supra, 	465 U.S. 	822 	[115 LRRM 3193]. 	On
remand, 	the NLRB 	adhered to 	its 	original 	conclusion about 	the
concerted 	activity 	requirement.
25

Although 	the 	establishment 	of 	a 	review board would 	affect
all officers, 	the 	evidence 	simply does 	not 	support Officer
Einheber's 	assertion that his 	letter was written on behalf 	of
others. 	Sergeant Powell, 	upon whom Officer Einheber relies,
specifically 	testified 	that 	Officer 	Einheber wrote 	the 	letter 	to
set out his 	"personal" 	views. 	Moreover, 	Officer Einheber's
contemporaneous 	statements 	contradict 	his 	present 	contention that
he was 	acting on behalf of others. 	In Officer Einheber's 	own
words, 	nothing 	in the 	letter 	"should be 	construed to 	represent
other than my own personal 	opinion." 	I 	conclude 	that 	the 	letter
was 	nothing 	other than an expression of 	views 	by 	a 	single
individual. 	Like the 	safety protest of 	an individual 	employee 	in
Meyers 	Industries, 	supra, 	Officer Einheber's 	letter to the
Berkeley 	campus 	chancellor was 	not protected 	conduct.23
Where 	employee 	acts 	do not 	qualify 	as 	protected
organizational 	activities, 	they 	sometimes 	are held to be
protected 	self-representation. 	For example, 	an individual
employee's 	complaints 	about 	job 	safety were 	held 	to 	be protected
in Pleasant Valley School District 	(1988) 	PERB Decision No. 	708.
But Pleasant Valley, 	the Board's primary decision 	in this 	area,
relies 	entirely on 	statutory 	construction. 	Under 	the wording 	of
the 	protected 	rights 	clause 	of 	the 	Educational 	Employment
23It is 	clear, 	also, 	that Officer Einheber's 	1985 	complaint
to 	the 	EEOC was 	not protected 	conduct under the HEERA. 	See
University of California, 	supra, 	PERB Decision No. 	615-H where a
complaint 	to 	the 	State 	Department 	of 	Fair Employment 	and 	Housing
was 	held 	to 	be 	unprotected under 	the 	HEERA.
26

Relations Act,24 the Board held 	that 	the 	employee had a protected
right to 	self-representation. 	A 	similar right 	is 	set out 	in the
Dills Act, 	the collective bargaining 	law for 	state employees.25
Because 	of 	the unique wording of 	the protected rights
section of 	HEERA, 	Officer Einheber 	can 	find no protection under a
theory 	of 	self-representation. 	Although 	HEERA protects 	employees
who 	seek union representation 	in the 	University's 	grievance
24Educational 	Employment 	Relations Act 	section 	3543 	provides
in relevant part:
Public 	school 	employees 	shall 	have the 	right
to form, 	join, 	and participate in the
activities 	of 	employee organizations 	of 	their
own choosing 	for the purpose of
representation on all 	matters 	of 	employer-
employee relations. 	Public 	school 	employees
shall also have the right to 	. 	. 	. 	represent
themselves 	individually 	in 	their 	employment
relations with the public 	school 	employer,
except 	that once 	the 	employees 	in an
appropriate unit 	have 	selected 	an 	exclusive
representative 	and 	it has 	been recognized
pursuant 	to 	Section 	3544.1 	or 	certified
pursuant to Section 3544.7, 	no employee in
that 	unit 	may meet 	and 	negotiate with 	the
public 	school 	employer. 	[Emphasis 	supplied.]
25Section 	3515 	of 	the 	Dills Act provides 	in relevant part 	as
follows:
Except 	as 	otherwise provided by 	the
Legislature, 	state employees 	shall have the
right to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own choosing 	for the purpose of
representation on all 	matters 	of 	employer-
employee relations. 	. 	. 	. 	In any event, 	state
employees 	shall 	have 	the 	right 	to 	represen
- - t
themselves 	individually 	in 	their 	employment
relations with the 	state. 	[Emphasis
supplied.]
27

procedure,26 section 	3565 	sets 	out no 	separate right 	for
employees 	to represent 	themselves, 	individually.27 A related
provision, 	section 3567,28 upon which Officer Einheber relies,
assures 	individual 	employees 	of 	a 	right 	to 	file 	grievances
without 	the 	interference 	of the 	exclusive representative.
Apparently modeled 	after a proviso 	in National 	Labor 	Relations
Act 	section 	9(a),
29
section 3567 	is very limited in purpose. 	Its
26 Regents 	of 	the University of California 	(Berkeley) 	(1983)
PERB Decision No. 	308-H.
27See footnote no. 	18, 	supra.
28
HEERA 	section 	3567 provides 	as 	follows:
Any 	employee 	or group 	of 	employees 	may at 	any
time, 	either 	individually or through a
representative of their own choosing, 	present
grievances 	to 	the 	employer and have 	such
grievances 	adjusted, 	without the 	intervention
of the exclusive representative; 	provided,
the 	adjustment 	is 	reached prior to
arbitration pursuant 	to Section 	3589, 	and the
adjustment 	is 	not 	inconsistent with 	the 	terms
of 	a written memorandum then in effect. 	The
employer 	shall 	not 	agree 	to 	resolution of 	the
grievance 	until 	the 	exclusive 	representative
has 	received a 	copy of 	the grievance 	and 	the
proposed resolution, 	and has 	been given the
opportunity to 	file a response.
29
National Labor Relations Act 	(NLRA) 	section 9(a) 	provides
in relevant part as 	follows:
. 	. 	. 	Provided, 	That any individual employee
or a group of 	employees 	shall have the right
at 	any time to present grievances 	to their
employer 	and 	to have 	such 	grievances
adjusted, 	without the 	intervention of the
bargaining representative, 	as 	long as the
adjustment 	is 	not 	inconsistent with the 	terms
of 	a 	collective bargaining contract 	or
agreement then 	in effect: 	Provided 	further,
That 	the 	bargaining 	representative has 	been
given opportunity to be present 	at 	such
adjustment.
28

sole purpose 	is 	to define 	the 	right of 	an individual 	to 	act
separately from the union. 	It cannot be read, 	as 	Officer
Einheber argues, 	to 	set out a 	specific protected right 	separate
from 	those 	identified 	in HEERA 	section 	3565.30
The 	omission 	from HEERA of provisions 	found 	in the 	EERA 	and
the Dills Act 	is 	not to be treated 	lightly. 	Such omissions 	are
"strong evidence of 	a contrary legislative 	intent." 	Regents 	of
the 	University 	of 	California 	v. 	Public 	Employment 	Relations 	Board
(1985) 	168 Cal.App.3d 937, 	945 	[214 Cal.Rptr. 	698]. 	The omission
of 	a 	right 	of 	self-representation 	from HEERA means 	that 	the
statute 	affords 	no protection against reprisal 	to 	employees who
engage 	in 	self-representation.
For these 	reasons 	I 	find 	that Officer Einheber has 	failed 	to
sustain 	the 	burden of 	showing 	that 	he 	engaged 	in conduct
protected by the HEERA. 	Accordingly, 	his 	charge and companion
complaint 	must 	be dismissed 	for 	failure 	to 	establish 	a prima
facie case. 	It is unnecessary, 	therefore, 	to consider the issue
of 	employer 	motivation or 	other 	University defenses.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire record 	in this 	matter, 	unfair practice 	charge
30The 	Supreme Court has 	limited the 	application of 	the
Section 9(a) 	provision, 	by reading its 	intent narrowly. 	The
Court 	finds 	the provision an authorization 	for 	an 	employer 	to
entertain grievances 	from 	individual- employees without 	liability
for bypassing the 	exclusive 	representative. 	"The Act 	nowhere
protects 	this 	'right' 	by making it an unfair labor practice 	for
an employer to refuse to entertain such a presentation 	. 	. 	. 	."
Emporium Capwell Co. 	v. 	Western Addition Community Organization
(1975) 	420 U.S. 	50, 	61 	[88 LRRM 2660].
29

SF-CE-258-H, 	Jack Einheber v. 	Regents 	of the University of
. .. 4: California, 	and the 	companion PERB 	complaint are hereby
DISMISSED.
Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement of 	exceptions with 	the
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 California Administrative
Code, 	title 8, 	section 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 California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	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 California Administrative Code, 	title 8, 	sections
32300, 	32305 and 32140.
Dated: 	October 22, 	1990
RONALD E. 	BLUBAUGH
Administrative 	Law 	Judge
30