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

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1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

Where an employer’s adverse action was motivated by both valid and invalid reasons, the employer failed to meet burden of proof that it would have issued memo and disciplined employee for alleged performance deficiencies notwithstanding filing of unfair practice charge. Criticisms justifying discipline were hearsay and, without independent evidence supporting them, cannot suffice to meet employer’s burden of proof. An employer need not justify each and every criticism in a disciplinary memo to satisfy the burden of proof, but there must be sufficient independent evidence for Board to conclude that the disciplinary action based on hearsay criticisms would have occurred notwithstanding the employee’s protected activity. Burden of proof is on union to demonstrate unlawful motivation for adverse action. Union failed to establish that criticisms contained in a written reprimand concerning his comments at a staff meeting concerning his PERB charge and other matters and for moving a co-worker’s tools were exaggerated or embellished. Absent evidence casting suspicion on the employer, reliance on direct supervisors’ reports for disciplinary actions is not evidence of unlawful motivation. Burden of proof is on charging party to demonstrate knowledge of protected activity. Knowledge was established by the fact that one of the persons responsible for imposing discipline after an employee filed a charge with PERB filed a notice of appearance with PERB and participated in the preparation of disciplinary memoranda.