Decision 1171E – Fresno County Office of Education

S-C-136

Decision Date: September 30, 1996

Decision Type: PERB Decision

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Perc Vol: 21
Perc Index: 28001

Decision Headnotes

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
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.

1106.00000 – CASE PROCESSING PROCEDURES; DISCOVERY
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.

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
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.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
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.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
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.