All notes for Subtopic 1108.02000 – Burden of Proof
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| A487E | Antelope Valley Community College District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof It is the respondent’s burden to demonstrate its compliance with PERB’s remedial order. (Hacienda La Puente Unified School District (1998) PERB Decision No. 1280, adopting proposed decision at pp. 8-9; City & County of San Francisco (2021) PERB Decision No. 2757-M, p. 15, fn. 10.) The Board’s finding “that an unfair labor practice was committed is presumptive proof that at least some backpay is owed.” (Bellflower Unified School District, supra, PERB Order No. Ad-475, p. 10, citing Arlington Hotel Co., Inc. (1987) 287 NLRB 851, 855.) “‘[A]ny uncertainty [as to backpay] must be resolved against the wrongdoer whose conduct made certainty impossible.’” (pp. 9-10.) more or view all topics or full text. | 46 | 56 | 08/27/21 |
| 2544Ea | Bellflower Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof Within a reasonable period post-termination, terminated employees have a duty to mitigate losses by taking steps consistent with the inclination to find new work and be self-supporting. (County of Lassen (2018) PERB Decision No. 2612-M, pp. 8-9.) A respondent that violated the law has the burden of establishing that an employee did not make a good faith effort to mitigate damages. (Id. at p. 8.) First, the respondent must show that: “(1) a number of positions were available that are substantially equivalent to the one previously held by the claimant; (2) the claimant would have qualified for one of these positions; and (3) the claimant did not apply for these positions.” (Fresno County Office of Education (1996) PERB Decision No. 1171, adopting proposed decision at p. 4.) If the respondent establishes each of these elements, the employee may still satisfy the duty to mitigate by showing other reasonable efforts via testimony or other reliable evidence of good faith job hunting efforts. (Id., adopting proposed decision at pp. 4-5.) As with other issues causing uncertainty in the amount of damages owed, PERB resolves uncertainty about mitigation against the wrongdoer. (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 10; City of Pasadena (2014) PERB Order No. Ad-406-M, p. 27.) Resolving whether an employee made reasonable efforts does not turn on any single category of potential job applications, much less any one application. more or view all topics or full text. | 46 | 143 | 03/24/22 |
| 2544E | Bellflower Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof A finding by the Board that an unfair labor practice was committed is presumptive proof that at least some backpay is owed. (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 10.) Notwithstanding this presumption, in compliance proceedings the charging party bears the burden of proving damages caused by the respondent’s unfair practices. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 56.) The charging party, however, need not prove damages with precision. Rather, make-whole relief usually involves predictions and estimates, and thus an approximation of actual damages may be sufficient to meet the charging party’s burden. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 14 (Pasadena).) PERB resolves uncertainties as to the amount owed against the wrongdoer. (Id. at p. 27; City of Culver City (2020) PERB Decision No. 2731-M, p. 26.) Moreover, provided that an estimate has a rational basis, and is not so excessive as to be punitive, it appropriately serves both a compensatory and deterrent function. (Pasadena, supra, PERB Order No. Ad-406-M, p. 13.) more or view all topics or full text. | 42 | 70 | 12/15/17 |
| 2544Ea | Bellflower Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof The respondent has the burden of proving its compliance with each part of the Board’s order. more or view all topics or full text. | 46 | 143 | 03/24/22 |
| 2796E | Bellflower Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof An order that may require the compliance officer to engage in some approximation is preferable to “permitting the employer to evade liability because of uncertainty caused by the employer’s own unlawful conduct, and thus leaving an unfair practice unremedied.” (Lodi Unified School District (2020) PERB Decision No. 2723, p. 21, fn. 13, citing City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14, & 26-27.) more or view all topics or full text. | 46 | 85 | 11/08/21 |
| A488E | Los Angeles Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof The names of any individuals claiming they did not receive the employer’s e-mail notices were relevant and necessary to determine the veracity of their statements. Indeed, under these circumstances a declaration that did not identify the declarant would have questionable evidentiary value, as it would not allow the employer or PERB to determine whether, in fact, the e-mail had been sent to the declarant or whether some transmission error had prevented the declarant from receiving it. The unsupported speculation that the employer might retaliate against an employee who submitted a declaration is not a substitute for actual evidence that a bargaining unit member did not receive the employer’s e-mail notices. Because the charging party declined to produce declarations of employees who allegedly did not receive the e-mail Notice, there was no material factual dispute over whether the employer e-mailed the Notice to the entire bargaining unit. Accordingly, Office of the General Counsel correctly determined that the employer complied with the Board’s electronic notice posting order. (pp. 9-11.) more or view all topics or full text. | 46 | 77 | 10/12/21 |
| A488E | Los Angeles Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof To investigate a claim that some bargaining unit members did not receive a Notice sent by e-mail, Office of the General Counsel issued an Order to Show Cause to determine whether there was a material factual dispute that necessitated an evidentiary hearing. Office of the General Counsel directed the charging party to provide declarations based on personal knowledge under penalty of perjury showing that any bargaining unit member did not receive the e-mail Notice. The charging party declined to provide such declarations, citing concerns that the declarants would face retaliation from the employer. In the absence of any countervailing evidence, Office of the General Counsel correctly relied on the employer’s unrebutted evidence to conclude that it had e-mailed the Notice to all bargaining unit members, thereby complying with the Board’s electronic notice posting order. (p. 10.) more or view all topics or full text. | 46 | 77 | 10/12/21 |
| A488E | Los Angeles Unified School District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof In compliance proceedings, the respondent has the burden to prove that it complied with the Board’s order. In the context of physical mail, the Board has adopted the generally accepted rebuttable presumption that documents correctly addressed and properly mailed were received by the addressee. The Board found it appropriate to adopt a similar rebuttable presumption for electronic mail. The employer submitted statements based on personal knowledge under penalty of perjury that it e-mailed the Notice to all certificated bargaining unit members on two occasions, thereby creating a rebuttable presumption that it did so. (p. 10.) more or view all topics or full text. | 46 | 77 | 10/12/21 |