EMPLOYER DISCRIMINATION; DISCRIMINATION – Burden of Proof; Evidence

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Once charging party has made a prima facie showing that exercise of rights granted by EERA was a motivating factor in employer's decision to transfer, the burden shifts to the employer to prove that its action(s) would have been the same despite the protected activity. The shifting of burdens does not undermine or conflict with the requirement of Board rule 32178 that charging party must establish an unfair labor practice by a preponderance of the evidence. The shifting burden merely requires the employer to make what is actually an affirmative defense to the prima facie case of wrongful motive. Such a requirement does not shift the ultimate burden; p. 14. Direct proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus, unlawful motive can be established by circumstantial evidence and inferred from a state of mind which may be known only to the actor. Thus, unlawful motive can be established by circumstantial evidence and inferred from and unlawful motives, the Board must determine whether the employer would have taken its action had the employee not engaged in protected activity; p. 16.