All notes for Subtopic 1108.02000 – Burden of Proof

DecisionDescriptionPERC Vol.PERC IndexDate
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.
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.
467710/12/21
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.
467710/12/21
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.
467710/12/21