On Application for Enforcement of an Order of the National Labor Relations Board & Cross-Petition for Review Case Nos. 22-CA-23223, 22-CA-23259 & 22-CA-23270
The opinion of the court was delivered by: Garth, Circuit Judge.
Submitted Pursuant to Third Circuit LAR 34.1(a) May 23, 2011
Before: MCKEE, Chief Judge, SCIRICA and GARTH, Circuit Judges
The National Labor Relations Board (Board) applies to this Court to enforce, and St. George Warehouse, Inc., (St. George) cross-petitions this Court to review, an order awarding backpay to two former St. George employees who were terminated for unlawfully discriminatory reasons. St. George argues that General Counsel for the Board did not meet its burden of producing evidence as to the reasonableness of the discriminatees‟ post-termination efforts to seek employment. Because we conclude that there was substantial evidence to support the Board‟s findings concerning mitigation, we will enforce the Board‟s order awarding backpay and deny the cross-petition for review.
In March 1999, St. George discharged forklift-operator Leonard Sides and warehouseman Jesus "Jesse" Tharp. Sides and Tharp appealed their respective discharges to an ALJ. The ALJ ordered St. George to reinstate Sides and Tharp and make them whole for their losses, concluding that they had been subject to surveillance and discharged discriminatorily by St. George on account of their involvement in a union. In a June 23, 2000, decision and order, the Board affirmed the ALJ‟s findings and conclusions, and adopted the ALJ‟s order as modified. 331 N.L.R.B. 454 (2000). We thereupon enforced the Board‟s order on April 23, 2001. 261 F.3d 493 (3d Cir. 2001). Our judgment was later amended on June 5, 2001.
Sides and Tharp were offered reinstatement on September 1, 2000, but both declined. As a consequence, each was entitled to receive backpay from the date of his discharge (March 31, 1999, for Sides; March 16, 1999, for Tharp) until September 1, 2000. St. George calculated the backpay it owed for that period as $6,618.40 to Sides and $8,302.02 to Tharp, and paid each accordingly.
On May 28, 2002, the Regional Director of the Board issued a Compliance Specification and Notice of Hearing,*fn1
which estimated additional amounts of backpay due to Sides and Tharp.
At the subsequent compliance (backpay) hearing on October 8, 2002,
neither Tharp nor Sides testified, and General Counsel,*fn2
who represented the discriminatees, did not
call any witnesses. St. George called a vocational expert, Donna
Flannery, to testify that neither Sides nor Tharp had adequately
sought to mitigate damages by exercising reasonable diligence in
seeking interim employment. Flannery asserted that, based on
employment statistics and newspaper advertisements, there were a
substantial number of comparable jobs available to Tharp and Sides
during their respective backpay periods. However, she admitted that
she had not interviewed either of them.
In an October 30, 2002, Supplemental Decision, the ALJ noted in her analysis that the burden of establishing that Sides and Tharp had failed to mitigate their damages rested exclusively with St. George, and did not shift back to General Counsel at any point. The ALJ found that St. George did not meet its burden of proving that Sides and Tharp had failed to exercise diligence in finding new work. As a consequence, the ALJ recommended that each be given additional backpay in the amounts of $26,447.90 to Sides and $14,649.79 to Tharp.
Nearly five years later, on September 30, 2007, the Board issued a Supplemental Decision and Order remanding this matter to the ALJ. The Board articulated a new standard of proof for backpay hearings: while employers would continue to bear the burden of persuasion as to an employee‟s alleged failure to engage in a reasonable search for new work, as well as the burden of producing evidence that there were substantially equivalent jobs within the relevant geographic area, General Counsel and the employee would now have the burden of producing evidence that the employee took reasonable steps to pursue those jobs. 351 N.L.R.B. 961, 961 (2007). In applying that new burden-shifting framework to the facts of this case, the Board concluded that St. George had produced evidence of substantially equivalent jobs within the area, but that General Counsel had not met its burden of production as to the employees‟ reasonable diligence to mitigate. As a result, the Board remanded to the ALJ to reopen the record to allow the parties to present evidence consistent with the revised burden of production, as declared by the Board.
Remand hearings were held before a new ALJ on February 26 and March 14, 2008. With respect to Sides‟s claim for backpay, General Counsel called Sides and Salvatore LoSauro, supervisor for the records unit at the New Jersey Department of Labor Employment Service (NJDOL) Employment Service, as witnesses. Sides testified that after being discharged from St. George, where he had worked for one-and-a-half years, he went to a New Jersey unemployment office and filed for benefits on April 18, 1999. On April 29, 1999, Sides registered at the veterans unit of the NJDOL Employment Service for help in returning to the workforce. On May 7, 1999, Sides was found eligible for unemployment benefits, and received his first unemployment check on June 1, 1999.
Sides also testified that between March 1999 and October 2000, he reviewed job listings in newspapers, primarily the Sunday Star Ledger. Sides did not own a car, and thus, his job search was restricted to positions within twenty-five miles of his home and within walking distance (about a mile) of public transportation. He also inquired about potential openings through friends and associates.
Sides found temporary work at two temporary staffing agencies, Labor Ready and J & J Staffing Resources, Inc. At Labor Ready, Sides stocked shelves from October 25, 1999 to November 26, 1999. At J & J, Sides unloaded tractor-trailers three to five days a week from November or December 1999 until March 12, 2000. Even as he worked in his temporary position at J & J, Sides continued to seek out long-term employment.
Sides kept records documenting his work search, which were admitted into evidence. Those records indicate that from March 1999 through August 2000, Sides applied to at least thirty-three positions (including Labor Ready and J & J), eight of which (from May 3 to September 30, 1999) were referred to him by the Unemployment Office. He also took a one-day forklift-certification class at the NJDOL in September 2009, and that he called a number of other employers to determine whether their ...