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

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
Request 	for Reconsideration
PERB Decision No. 	949-H
PERB Decision No. 	949a-H
April 10, 	1997
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Appearances: 	Jack Einheber, 	on his own behalf; 	Joyce Harlan,
Labor Relations, 	for Regents 	of 	the University of 	California.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case 	is before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on appeal 	by Jack
Einheber 	(Einheber) 	of 	the denial 	by a 	PERB administrative 	law
judge 	of 	Einheber's 	request 	to 	reopen the 	hearing 	record 	in
Regents of the University of California 	(Einheber) 	(1992) 	PERB
Decision No. 	949-H 	(Regents of U C ) . 	In that case, 	the Board
dismissed 	Einheber's 	unfair practice 	charge 	and 	the 	complaint
alleging that 	the University of 	California 	(University) 	violated
section 3571(a) 	of 	the Higher Education Employer-Employee
Relations 	Act 	(HEERA)1 when 	it 	dismissed Einheber 	from his
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3571 states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer to do any of 	the 	following:
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position as 	a University police 	officer.
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
DISCUSSION
Einheber's 	request 	to 	reopen 	the 	hearing 	record 	is 	based on
his 	assertion 	that 	he 	"relatively 	recently discovered abundant
evidence" 	that 	his 	dismissal 	from his position as 	a University
police 	officer 	resulted 	from retaliatory, 	disparate 	treatment 	of
him by the University. 	The primary evidence 	Einheber 	offers
involves 	several 	incidents 	involving 	other University 	officers
who were 	allegedly 	subjected to 	discipline but 	were 	not
dismissed. 	Einheber apparently argues 	that 	the 	conduct 	of 	the
officers 	in those 	cases was at 	least as 	serious as 	the 	conduct
for which he was 	dismissed. 	Therefore, 	Einheber argues 	the
University's 	dismissal 	of 	Einheber 	constituted disparate
treatment 	and 	supports 	his 	allegation of 	unlawful 	retaliation.
In San Mateo Community College District 	(1985) 	PERB Decision
No. 	543, 	the Board concluded that 	it 	is appropriate to consider a
request 	to 	reopen a 	completed 	record based 	on new evidence 	by
applying 	the 	standard 	for 	requests 	for 	reconsideration 	set 	forth
in PERB regulations.2
The 	relevant part 	of 	PERB Regulation 32410 	states:
2PERB regulations are 	codified at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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(a) 	Any party to a decision of 	the Board
itself may, 	because of extraordinary
circumstances, 	file a request 	to reconsider
the 	decision within 20 	days 	following 	the
date of service of the decision. 	. 	. 	. 	The
grounds 	for 	requesting 	reconsideration are
limited to 	claims 	that 	the decision of 	the
Board 	itself 	contains 	prejudicial 	errors 	of
fact, 	or newly discovered evidence or law
which was 	not 	previously available 	and 	could
not 	have been discovered with 	the 	exercise 	of
reasonable 	diligence.
The 	Board 	recently 	considered 	requests 	to 	reopen 	two 	cases
based on 	the 	argument 	that 	a 	ruling 	issued by another
governmental 	agency 	supported 	the 	charging party's 	allegations
that 	the 	employer violated the Ralph C. 	Dills Act. 	The 	charging
party argued 	that 	the Board 	should 	reopen 	the 	cases 	over a year
after it had dismissed the allegations, 	because 	the 	ruling of 	the
other governmental 	agency 	only 	recently had become 	available.
The 	Board 	treated 	the 	requests 	as 	requests 	for 	reconsideration
and 	considered whether good 	cause 	existed 	to 	excuse 	the 	late
filings. 	(State 	of 	California 	(Department 	of 	Youth Authority)
(1996) 	PERB Order No. 	Ad-275-S; 	California State Employees
Association. 	Local 	1000 	(Janowicz) 	(1996) 	PERB Order
No. Ad-276-S.)
The Board concludes 	that 	it 	is appropriate to 	follow this
approach 	in 	considering Einheber's 	request.
The Board's 	decision 	in Regents 	of UC was 	issued on
August 13, 	1992. 	Einheber's request, 	based on his assertion that
there 	is 	new evidence 	to 	support his 	charge against 	the
University, 	was 	filed on May 14, 	1996, 	three years and nine
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months later. 	Accordingly, 	the Board must address 	the 	issue of
Einheber's 	extremely 	late 	filing 	of 	the 	request.
PERB Regulation 32136 provides, 	in part:
A late 	filing may be 	excused 	in 	the
discretion 	of 	the Board 	for good 	cause 	only.
A late 	filing which has 	been 	excused becomes
a 	timely 	filing under 	these 	regulations.
In applying 	this 	regulation, 	the Board has 	found good cause 	to
excuse 	late 	filings 	when a party has 	demonstrated a 	conscientious
effort 	to timely file. 	(See, 	e.g., 	North Orange County Regional
Occupational 	Program 	(1990) 	PERB Decision No. 	807 	(excusing late
filing where 	exceptions 	inadvertently directed 	to 	wrong 	PERB
office); 	Trustees of the California University 	(1989) 	PERB Order
No. 	Ad-192-H 	(holding 	that 	good 	cause 	existed where postage meter
set 	to 	incorrect 	date).)
As noted above, 	Einheber's 	request 	for reconsideration is
based 	on his 	assertion 	that 	"relatively 	recently 	discovered"
evidence 	demonstrates 	that 	the 	University 	terminated 	him 	in
retaliation 	for his 	protected activity. 	Einheber 	cites 	a number
of 	incidents 	in support of his 	request, 	most of which occurred
prior to our 1992 	decision 	in Regents 	of UC. 	The most 	recent
incident apparently occurred on January 31, 	1995. 	Einheber does
not provide any explanation 	for his 	failure 	to 	file his 	request
for reconsideration until May 14, 	1996. 	Where a party fails 	to
provide 	any explanation to excuse a 	late 	filing, 	the Board 	is
precluded 	from finding that 	good 	cause 	exists. 	(California
Faculty Association 	(Gregg) 	(1995) 	PERB Order No. 	Ad-271-H at
p. 	2, 	citing Sonoma County Office of Education 	(1992) 	PERB Order
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No. 	Ad-230.) 	Accordingly, 	the Board finds 	that good cause does
not 	exist 	to 	excuse 	Einheber's 	late 	filed 	request 	for
reconsideration.
ORDER
Jack Einheber's 	request 	to accept 	his 	late 	filed 	request 	for
reconsideration of 	the Board's 	decision 	in Regents 	of 	the
University of 	California 	(Einheber) 	(1992) 	PERB Decision
No. 	949-H is hereby DENIED.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
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