NLRB v. St. George Warehouse & Merchandise Drivers Local No. 641

In an unfair-labor-practice proceeding, the National Labor Relations Board (NLRB) (plaintiff) found that St. George Warehouse (St. George) (defendant) had violated the National Labor Relations Act by discharging two employees: forklift operator Leonard Sides and warehouse worker Jesse Tharp. The NLRB ordered St. George to make Sides and Tharp whole, and the NLRB’s regional director issued a compliance specification listing the backpay amount allegedly owed to Sides and Tharp. St. George asserted a job-search defense, claiming that Sides and Tharp had failed to mitigate their damages because they had not sufficiently tried to find interim employment following termination. At a backpay hearing, the NLRB’s general counsel did not present any evidence regarding Sides’s or Tharp’s mitigation efforts. St. George presented testimony from vocational employability specialist Donna Flannery. Flannery testified that many comparable jobs were available in the relevant area during the backpay period but that Sides and Tharp had never tried to find employment. Flannery had never interviewed Sides or Tharp, and nobody with knowledge of Sides’s or Tharp’s job-search efforts testified at the hearing. The administrative-law judge found that St. George bore the burden of proving that Sides and Tharp had failed to mitigate their damages and that St. George had not met its burden. St. George appealed, asserting that once an employer established the availability of suitable interim work, the burden should shift to the general counsel to produce evidence concerning the employee’s efforts to obtain work.