All notes for Subtopic 1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

DecisionDescriptionPERC Vol.PERC IndexDate
2667P San Diego Metropolitan Transit System
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
PERB Regulation 93040, governing hearings before SMCS, does not prohibit consideration of hearsay evidence. SMCS and the Board may thus consider hearsay evidence while taking into account its hearsay nature when determining how much evidentiary weight to give it. (p. 30, fn. 21.) more or view all topics or full text.
09/06/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Under PERB Regulation 32176, a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions. But Respondent’s evidence sufficiently corroborated Charging Party’s hearsay exhibits such that Charging Party met its burden of proof to demonstrate majority status. The Board rejected Respondent’s argument that it must ignore relevant evidence merely because it was not presented in the Charging Party’s case-in-chief but by the party without the burden of proof. (p. 21, fn. 23.) more or view all topics or full text.
09/20/19
2622E Cabrillo Community College District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Following Board review of a dismissal, the Board remanded the case to the Office of the General Counsel for issuance of a complaint. (p. 2, citing Cabrillo Community College District (2015) PERB Decision No. 2453.) Following a formal hearing, the ALJ dismissed the complaint. (p. 1.) Charging party’s exception that the ALJ improperly departed from the Board’s prior decision is misplaced. The Board made no conclusive factual findings in its earlier decision directing OGC to issue a complaint. (pp. 4-5.) Once OGC issued the complaint, it was incumbent upon charging party to prove the complaint allegations during the hearing. (p. 5.) more or view all topics or full text.
4312602/04/19
2544E Bellflower Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
The Board rejected a school district’s exception that a Board-ordered remedy including restoration of the status quo and make-whole relief conflicted with federal law governing special education. The district’s statement of exceptions and supporting brief included no citation to any provision of the federal statute or decisional law interpreting it, and the district failed to explain how PERB’s customary remedy for a unilateral change would conflict with federal law. The district’s filing both failed to comply with the requirements of PERB Regulation 32300 governing exceptions, and, even if considered, had no merit. Unless a remedial measure positively conflicts with “inflexible standard[s]” or “immutable provisions” set by external law, the fact that it affects matters normally within the jurisdiction of another tribunal does not, by itself, make PERB’s remedy improper. (pp. 10-11.) more or view all topics or full text.
427012/15/17
2544E Bellflower Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
In the absence of any explanation or briefing from a school district who argued that the management rights clause remained in effect after 2010, or a request for reconsideration showing both extraordinary circumstances and that the Board’s determination in a prior decision that the parties’ agreement had expired in 2010 contained prejudicial error of fact, the Board had no grounds to consider the district’s waiver defense, which was based on the management rights language, in this case. (p. 7.) The interpretation of a collective bargaining agreement is not simply a factual finding of the sort which the Board or its agents are free to disregard in a subsequent case involving the same language. Because of its significance for governing the parties’ ongoing relationship, a Board finding as to the meaning of a contract term is more akin to a question of law, particularly where, as here, the question is whether the contract itself is illegal or void for public policy, as declared by the three-year limit for collective bargaining agreements set forth in EERA section 3540.1, subdivision (h). (pp. 6-7.) more or view all topics or full text.
427012/15/17
2544E Bellflower Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
The Board rejected a school district’s exception that it had no notice that the ALJ considered the duration language of the parties’ agreement ambiguous or that the meaning of the duration language would be dispositive in the case by determining whether the management rights clause remained in effect. (p. 5-6.) A PERB hearing officer has the power and the duty to “[i]nquire fully into all issues and obtain a complete record upon which the decision can be rendered” and to “[r]ender and serve the proposed decision on each party.” (PERB Reg. 32170.) A hearing officer is not required to advise the parties of which factual disputes or legal issues may determine the outcome of the case, nor to make preliminary factual findings at the hearing itself so that the parties may object or offer additional evidence or argument on the issue. (Ibid.) more or view all topics or full text.
427012/15/17
2541M City of Calexico
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Respondent’s admission of allegation in the complaint is conclusive and removes it from the issues in controversy. more or view all topics or full text.
425310/20/17
2544E Bellflower Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Because the uncontradicted, unimpeached testimony of three union witnesses and one management witness was that the parties’ collective bargaining agreement had expired in 2010, the Board denied a school district’s exception arguing that the agreement’s management rights clause had remained in effect and served as a waiver of the union’s right to bargain over subcontracting of the district’s bus services. (p. 5.) Uncontradicted, unimpeached testimony at hearing is sufficient to carry the burden of proof in an unfair practice case. (PERB Reg. 32178.) more or view all topics or full text.
427012/15/17
2531M Santa Clara Valley Water District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
In the absence of decertification, Charging Parties had no absolute right to a separate unit of professional employees when the exclusive representative of the existing mixed unit did not wish to split the unit into professional and non-professional units. PERB and controlling judicial authority have held that the right of professional employees to separate representation is not absolute, but must be harmonized with other provisions of the statute. (p. 14.) more or view all topics or full text.
42506/23/17
2531M Santa Clara Valley Water District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Charging Party’s petition to establish a separate unit of professional employees but to retain the same exclusive representative of the current mixed unit failed to comply with the District’s local rules governing unit modification and severance. Charging Party failed to overcome the presumption of correctness afforded a legislative act to show that the District had acted unreasonably in applying or enforcing any aspect of its local rules governing unit modification and severance. The MMBA grants public agencies the right to “adopt reasonable rules and regulations” for the administration of employer-employee relations, including for determining what constitutes “an appropriate unit” of employees for collective bargaining purposes. PERB and judicial authority requires that, when evaluating the reasonableness of a public agency’s unit determination made pursuant to a local rule, the party challenging the unit determination bears the burden of demonstrating that the decision was not reasonable. (pp. 10-11.) more or view all topics or full text.
42506/23/17
2523C El Dorado County Superior Court
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
The Board rejected Charging Party’s exception that, by requesting bargaining over a single issue following impasse, the Charging Party had effectively broken the deadlock and revived the Respondent’s duty to bargain over the single issue, which had already been part of the overall deadlock reached in negotiations for a successor MOU. (pp. 10-11.) The Board found no violation of the duty to bargain because Charging Party’s request for single-issue negotiations did not break the impasse and revive the Respondent’s duty to bargain. Although impasse necessarily entails an overall deadlock in negotiations, it may stem from disagreement over a single subject, if the disagreement is of such importance that the parties’ failure to agree on that one subject causes all negotiations to break down. (pp. 10-11.) The party asserting that an impasse has been broken must point to the changed circumstances that would justify a return to the bargaining table. Mere speculation regarding possible concessions by the other party is insufficient to revive bargaining. There must be substantial evidence that a party is committed to a new bargaining position. Vague and general statements about possible concessions or a request by one party for additional meetings, if unaccompanied by an indication of the areas in which that party foresees future concessions, are insufficient to break an impasse where the other party has clearly announced that its position is final. (p. 9.) more or view all topics or full text.
4115203/20/17
2571M City of San Ramon
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
In determining how much weight to afford bargaining notes, an ALJ must consider all relevant factors, including but not limited to the notes’ quality, their consistency with other evidence, and whether the notes were taken contemporaneously. (Salinas Valley Memorial Healthcare System (2015) PERB Decision No. 2433-M, adopting proposed decision at p. 10.) more or view all topics or full text.
43606/20/18
2571M City of San Ramon
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.) more or view all topics or full text.
43606/20/18
2476M City of Santa Clara
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Charging party was blindsided by ALJ’s categorical refusal to consider declarations on disputed material facts where ALJ previously assigned to the case had agreed to permit the disputed issues to be decided based on declarations and rebuttal declarations rather than live testimony. The Board remanded with instructions for the ALJ to convene a hearing or otherwise determine how best to inquire fully into all issues and obtain a complete record on which a decision could be rendered. more or view all topics or full text.
4015403/10/16
2481H Regents of the University of California (Los Angeles)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
PERB Regulation 32150 provides that, before the hearing has commenced, the Board shall issue subpoenas at the request of any party for attendance of witnesses or production of documents at the hearing. The regulation also provides that compliance with the provisions of section 1985 of the Code of Civil Procedure shall be a condition precedent to the issuance of a subpoena for production of documents. After the hearing has begun, a decision to issue subpoenas is left to the sound discretion of the hearing officer. Board declined to disturb ALJ’s ruling denying charging party’s request, made on the last day of presenting his case-in-chief, for production of documents to attack witness credibility. Despite being a self-represented layperson, charging party was familiar with PERB’s unfair practice proceedings from a previous case, including his burden of presenting competent evidence to support each element of the prima facie case. more or view all topics or full text.
4018405/27/16
2427M County of San Luis Obispo
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Because the unions admitted in their answers to the complaints that they had “refused to bargain” over the county’s proposal to change the formula for allocating pension costs between employees and the county, under the conclusiveness of pleadings doctrine, unions were not free to argue otherwise in subsequent proceedings. more or view all topics or full text.
3917606/03/15
2386S California Statewide Law Enforcement Association (Armantrout)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
If union’s conduct had interfered with charging party’s representative, it was incumbent upon charging party to elicit such testimony from his representative. He did not. We conclude that charging party failed to prove that union’s conduct interfered with charging party’s representative. more or view all topics or full text.
391806/30/14
2384H Trustees of the California State University
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Under broad principles of agency used in federal labor law and adopted by PERB, there exists a rebuttable presumption that an employer is responsible for the conduct of its supervisors. more or view all topics or full text.
391606/30/14
2351M City of Sacramento
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Although insufficient notice is an element of the charging party’s prima facie case in a unilateral change case, where the facts demonstrate, or the respondent admits, that no formal notice was provided, the burden is the respondent’s to prove its affirmative defense of waiver. Because the City gave no formal notice to the exclusive representative of a proposed transfer of bargaining unit work, it was the City’s burden to establish that the representative had actual or constructive notice of the proposed change and that it failed to act on such knowledge, before the City began meeting with employees to implement the decision. more or view all topics or full text.
3810412/24/13
2093H Trustees of the California State University (San Marcos)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Charging party’s witness testimony was contradicted by that of four other witnesses. Thus, charging party did not prove the complaint by a preponderance of the evidence. more or view all topics or full text.
344002/02/10
2090M County of Riverside * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Given that percipient witnesses did not testify to explain basis for adverse actions, the employer failed to establish any legitimate justification for its actions, and adverse actions culminating in termination were taken in retaliation for employee’s exercise of protected rights. Because virtually none of the percipient witnesses to the alleged incidents testified, there was no independent evidence in the record to support nearly all of the allegations of employee misconduct and the hearsay testimony presented was discredited on numerous points. Therefore, the employer failed to establish that it would have taken the adverse action even if the employee had not engaged in protected activity. Accordingly, the employer failed to meet its burden of proof under the “but for” test, and unlawfully retaliated against the employee for having engaged in protected activity. more or view all topics or full text.
344512/31/09
2061E Oakland Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Charging party bears the burden at the formal hearing of proving by a preponderance of the evidence the elements of a prima facie case of discrimination. more or view all topics or full text.
3315309/10/09
2019E Escondido Union Elementary School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; 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. more or view all topics or full text.
337404/30/09
1759E Stockton Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
In the absence of a clear and concise statement of facts showing a District past practice of always granting release time requests, Board is inclined to give more weight to District’s evidence. more or view all topics or full text.
2910403/28/05
1676M Rainbow Municipal Water District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Witnesses failure to testify on an important issues in the case and corroborating witnesses failure to recall events regarding the issue causes ALJ to make an adverse inference against both witnesses and discredit their accounts of the events. more or view all topics or full text.
2822008/19/04
1636M Service Employees International Union, Local 790, AFL-CIO (Banks, et al.)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
In DFR case, burden is on charging party to show how the exclusive representative abused its discretion. more or view all topics or full text.
2815906/04/04
1584H Trustees of the California State University (San Marcos)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Burden of proof in unilateral change is on charging party to provide extrinsic evidence to support its interpretation of the settlement agreement. No evidence-no violation. more or view all topics or full text.
286101/13/04
1529E Oakland Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Allegations comprising a defense to discrimination by the school district are properly considered during the Board’s hearing process, not during a consideration of whether sufficient evidence has been produced by the union to state a prima facie case. more or view all topics or full text.
279106/20/03
A079S State Employer-Employee Relations Act - Governor's Office of Employee Relations (Phase III)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Burden of proof in unit determination proceeding is on party seeking exclusion of employees from units to justify the exclusion; p. 2. Burden of justifying exclusion in unit determination proceeding can be met by showing evidence of actual job requirements which disqualify the employee from placement in representation units, irrespective of which exclusionary category those employees may fit; p. 2. In unit determination hearing, all evidence relevant to any exclusionary issue would be admitted; p. 2. more or view all topics or full text.
31013310/18/79
1246E Oakdale Union Elementary School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Mere fact that some allegations in letter of reprimand were later shown to be true is insufficient to rebut inference of unlawful motivation where District fails to demonstrate that it would have taken adverse action despite protected activity; p. 17, note 6. more or view all topics or full text.
222904701/28/98
1171E Fresno County Office of Education
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
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. more or view all topics or full text.
212800109/30/96
1110E Temple City Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Sweetwater establishes three classified units which are "presumptively appropriate": (1) instructional aides, (2) office-technician and business services, and (3) operations-support services; The burden of proof lies with the party seeking a unit or units different from the Sweetwater unit configuration; p. 3. more or view all topics or full text.
192611306/22/95
1098E Pasadena Community College District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
The burden of proof for showing a change in the past practice is that of the charging party; p. 14, proposed dec. more or view all topics or full text.
192608905/03/95
1091E Los Angeles Community College District (Mrvichin)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Evidence of wrongdoing is not itself a bar to all relief sought by a victum of discrimination; McKennon v. Nashville Banner Publishing Co. (January 23, 1995) U.S. [63 U.S.L. Week 41045]; District cannot use after-acquired evidence to support termination; p. 17. more or view all topics or full text.
192606903/16/95
1070E Davis Teachers Association (Carlson)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
The burden is on the charging party to allege facts which both establish a prima facie violation and the timeliness of the charge; p. 2, dismissal letter. more or view all topics or full text.
192602511/29/94
1026S State of California (Department of Parks and Recreation) (International Union of Operating Engineers, Craft-Maintenance Division, Units 12 and 13)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
To establish a violation of section 3519(b), the Union has the burden to establish a denial of its rights separate and apart from the rights of individual employees; p. 5. Since the employer banned all union buttons, the burden of proving special circumstances is on the employer. more or view all topics or full text.
182501111/17/93
0874E Los Angeles Unified School District (Woods)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
During the hearing, any instruction from the ALJ to the charging party regarding the charging party's burden of establishing protected activity should, at a minimum, reflect the allegations of protected activity contained in the amended complaint. more or view all topics or full text.
152206904/10/91
0869H California State University, Hayward (Dees)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
An inference of unlawful motive, may be drawn from the record as a whole; p. 24, proposed dec. Inference of unlawful motive may be drawn if reasonably based on the totality of the circumstances; p. 24, proposed dec. more or view all topics or full text.
152205102/25/91
0864E Newark Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
An inference of unlawful motive may be drawn from the record as a whole; p. 5. more or view all topics or full text.
152202301/14/91
0792E Inglewood Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
The burden of proof in unfair labor practice cases is preponderance of the evidence; p. 19. The burden of proving agency is on the party asserting its existence; p. 19. (Affirmed, Inglewood Teachers Association v. PERB/Inglewood Unified School District (1991) 227 Cal.App.3d 767.) more or view all topics or full text.
142105702/15/90
0789E Beverly Hills Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
ALJ properly refused to consider contract waiver defense not raised until end of hearing where respondent had earlier stated the contract was not at issue and where charging party was prejudiced by unavailability of key witness; pp. 13-14; pp. 19-23, proposed dec. Den Denial in answer that unilateral action took place without notice and opportunity to bargain did not put charging party on notice of contract waiver defense; p. 13. Requirement of Reg. 32644 that statement of affirmative defenses be included in answer serves to assure a fair litigation process, particularly since PERB procedures do not provide for a formal discovery process; p. 14. more or view all topics or full text.
142104201/19/90
2490M County of San Joaquin
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Board declined to disturb ALJ’s credibility determinations to resolve conflicting evidence on whether the employer’s managers were aware of an alleged practice of permitting flexible schedules for employees with childcare responsibilities where evidence in the record as a whole supported ALJ’s factual findings and credibility determinations. more or view all topics or full text.
412906/30/16
0373Ec Mt. Diablo Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
The uncontroverted and unimpeached testimony of one witness may carry the burden of proof in an unfair practice case; p. 4. more or view all topics or full text.
81519110/17/84
0356H Regents of the University of California (Statewide University Police Association)
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Burden of proof of affirmative defense of past practice rest with the respondent. more or view all topics or full text.
71428811/14/83
0352E Palo Alto Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Rebuttable presumption that all classroom teachers will be in same unit. Presumption may be rebutted by showing lack of community of interest or such application would cause disruption or instability within an already established unit. Burden of proof remains on the party opposing the presumptively appropriate unit. more or view all topics or full text.
71427810/24/83
0339E Salinas Union High School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Charging party has burden of showing establishment of new term or condition; p. 18. Employer's drop of proposal on in-service training not a general repudiation of in-service training. more or view all topics or full text.
71423608/22/83
0320E Oakland Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Rebuttable presumption that all classroom teachers are in the same unit. Cites Peralta CCD (1977) PERB Dec. No. 77. Presumption applies to question of proper unit placement of substitute teachers, and single unit will be directed, unless disparate community of interest exist or such application would cause disruption or instability within an already established unit. Question of disruption of part of Peralta test. more or view all topics or full text.
71418306/20/83
0208E Fresno Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
A pre-impasse strike creates a rebuttable presumption that it is a violation of EERA section 3543.6(c). more or view all topics or full text.
61311004/30/82
0117E Grossmont Community College District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Although the charging party has the initial burden of showing a nexus between a protected right and the employer's actions, it does not have the burden of going forward with evidence at the outset of its case that would overcome affirmative defenses; pp. 3-4. more or view all topics or full text.
41104303/19/80
0038E Azusa Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Where natural consequences of an employer's conduct is encouragement or discouragement of union membership, it will be presumed that the employer intended this result. more or view all topics or full text.
158711/23/77
0027E Washington Unified School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Presumption that psychologists, guidance specialist, counselors, nurses, librarians and work experience specialists belong in the same unit with teachers. more or view all topics or full text.
141109/14/77
0024E Pleasanton Joint Elementary School District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Rebuttable presumption that unit containing counselors and other certificated employees is an appropriate unit. more or view all topics or full text.
143809/12/77
0010E Foothill-DeAnza Community College District
1105.3000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Sweetwater units are rebuttably presumed appropriate. more or view all topics or full text.
16403/01/77