(dissenting).
I dissent. The Department, in direct contravention of settled law, placed the burden of proof on the nonmoving party, the District.
Rininger commenced this unfair labor practice action against District. It was, therefore, his burden to prove that District violated, misinterpreted, or inequitably applied District’s written policies in failing to reemploy him. The issue centered around conflicting testimony of Rininger and District’s superintendent, Mr. Gannon. The hearing officer found “no inconsistency that would make Rininger more credible than Gannon, or vice versa.” Rather than finding that the evidence did not preponderate in favor of movant (Rininger), Department erroneously converted District’s position into an “affirmative defense” and held in favor of Rininger.
This is contrary to the settled law in South Dakota. As we stated in South Dakota Bd. of Regents v. Heege, 428 N.W.2d 535, 542 n. 3 (S.D.1988),
[a] charge of unfair labor practice properly brought before the Department of *429Labor under both SDCL ch. 3-18 and ch. 1-26 would place the burden of. proof upon the party who alleged the violation. See, General Drivers, supra at 798-99 and 51A C.J.S. Labor Relations § 561, as to SDCL ch. 3-18; and Gourley v. Board of Trustees, 289 N.W.2d 251 (S.D.1980) as to SDCL ch. 1-26. (Emphasis added.)
Here, Rininger is the one seeking to prove that he is entitled to damages and interest. Rininger is the movant and bears the burden of proving all matters essential to his claim. South Dakota Bd. of Regents, supra. Peterson v. Hoftiezer, 35 S.D. 101, 150 N.W. 934 (1915), relied upon by Department, is inapposite. Peterson deals with a promissory note where a maker pleads fraud as an affirmative defense. It certainly does not apply here.