CASE PROCESSING PROCEDURES; EVIDENCE – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

Single Topic for Decision 1171E

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In a compliance case the burden of proof is on the respondent. Under NLRB precedent, in order to receive any offset against the amount of back pay due, the employer has the burden of establishing that employees failed to mitigate their damages; pp. 3 et seq., proposed dec.; any uncertainty is resolved against the employer. In establishing a failure to mitigate, the employer must demonstrate that the claimant failed to make efforts consistent with the inclination to work and to be self-supporting; Claimants are not expected to seek a job more onerous than the one from which they were removed, but rather are expected to seek a substantially equivalent job. The claimant can still prevail if the record shows reasonable efforts to obtain interim employment; pp. 3-5, proposed dec.