Decision 1171E – Fresno County Office of Education
S-C-136
Decision Date: September 30, 1996
Decision Type: PERB Decision
Description: Employer appealed order to comply with a Board order in an earlier unfair practice case.
Disposition: Dismissed. Employer failed to meet its burden of showing that employees did not’ make reasonable efforts to mitigate their damages.
Perc Vol: 21
Perc Index: 28001
Decision Headnotes
1105.03000 – 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.
1106.01000 – In General
Lack of formal discovery does not lessen respondent's burden of proof in a compliance case because there are many ways to gather information for a PERB hearing.
1108.01000 – In General
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.
1201.01000 – In General
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.
1201.03000 – Back Pay; Interest
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.