St. George Warehouse

National Labor Relations Board - Board Decisions

Nov 18, 2008

353 N.L.R.B. 497 (N.L.R.B. 2008)

ST. GEORGE WAREHOUSE
353 NLRB No. 50
497
St. George Warehouse and Merchandise Drivers Lo-
cal No. 641, International Brotherhood of Team-
sters, Petitioner. Cases 22–CA–23223, 22–CA–
23259, and 22–CA–23270
November 17, 2008
SECOND SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On May 20, 2008, Administrative Law Judge Steven
Davis issued the attached Second Supplemental Deci-
sion. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering brief.
The National Labor Relations Board1 has considered
the Second Supplemental Decision and the record in light
of the exceptions and briefs, and has decided to affirm
the judge’s rulings, findings,2 and conclusions, and to
adopt the recommended Order.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Section 3(b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), efd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No exceptions were filed to the judge’s finding that employee
“Sides’ search for work began virtually within two weeks of his dis-
charge” and, therefore, that Sides’ job search satisfied the requirements
of Grosvenor Resort, 350 NLRB 1197, 1199 (2007). In the absence of
exceptions, Chairman Schaumber adopts the judge’s finding. Member
Liebman applies Grosvenor Resort, a decision in which she did not
participate, solely because it represents current Board law.
In adopting the judge’s finding the General Counsel carried his bur-
den of adducing evidence that Tharp took reasonable steps to secure
interim employment, and that the Respondent failed to carry its burden
of persuasion in showing that Tharp failed to mitigate his damages,
Chairman Schaumber does not rely on the judge’s articulated “assump-
tions.” Rather, he notes that the record reflects that Tharp worked
continuously for the Respondent for 6 years; that he promptly initiated
a search for employment in New Jersey; that the documentary evidence
that does exist shows that Tharp applied with seven different employers
in 3 days; that Tharp’s mitigation efforts were corroborated to an extent
by his mother; and that Tharp promptly secured employment once he
relocated to a different job market. Chairman Schaumber further notes
that Tharp is unavailable to explain the absence of records relating to
his mitigation efforts, that his move to Florida may have complicated
the Region’s compliance with its obligation to document such efforts,
and that Tharp’s death obviously precludes him from expounding on
the details of his job search. Under the unique circumstances of this
case, Member Schaumber agrees that Tharp’s estate (or other legal
ORDER
The National Labor Relations Board adopts the rec-
ommended Second Supplemental Decision of the admin-
istrative law judge and orders that the Respondent, St.
George Warehouse, Kearney, New Jersey, its officers,
agents, successors, and assigns, shall satisfy the obliga-
tion to make whole the following claimants by paying
them the following amounts, together with interest
thereon accrued to the date of payment computed in the
manner described in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax and withholdings required
by Federal and State laws.3
Name of Backpay Claimant Net Backpay
Leonard Sides $26,447.90
Jesus (Jesse) Tharp 14,649.79
Total Net Backpay $41,097.69
Saulo Santiago, Esq., for the General Counsel.
John A. Craner, Esq. (Craner, Satkin & Scheer, P.C.), Scotch
Plains, New Jersey, for the Respondent.
SECOND SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. On June 23,
2000, the Board issued its Decision which ordered St. George
Warehouse, Inc. (Respondent) to make its employees Leonard
Sides and Jesse Tharp whole for their losses resulting from the
Respondent’s unfair labor practices. 331 NLRB 454. On April
23, 2001, the United States Court of Appeals for the Third Cir-
cuit entered a judgment enforcing the Board’s Order. 261 F.3rd
493, and on June 5, 2001, the court entered its amended judg-
ment enforcing the Board’s Order.
On May 28, 2002, a Compliance Specification was issued,
and on October 8, 2002, Administrative Law Judge Margaret
M. Kern heard this case in a compliance proceeding where the
issue was the amount of backpay owed to Sides and Tharp.
Judge Kern noted that the Respondent did not challenge the
General Counsel’s method of calculating the backpay amounts
for the two discriminatees. Certain payments made by the Re-
spondent to both men following their discharges were included
in the Specification, for which the Respondent was credited.
At that hearing, the Respondent presented evidence through
a vocational employability specialist that there were a sufficient
number of relevant jobs advertised as open and available during
the backpay period. The General Counsel called no witnesses,
and no one testified with any knowledge of the discriminatees’

representative) is entitled to the backpay set forth in the judge’s deci-
sion.
3 Tharp’s backpay shall be paid to the legal administrator of his es-
tate or to the person authorized to receive such payment under applica-
ble State law. See United States Service Industries, 325 NLRB 485,
487 (1998), citing ABC Automotive Products Corp., 319 NLRB 874,
878 fn. 8 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD498
actual efforts to find employment. Counsel for the General
Counsel relied solely on the amended Compliance Specification
to prove her case.
The judge, relying on then current law, held that the entire
burden of showing that the discriminatees failed to mitigate
their damages rested exclusively on the Respondent, and did
not shift back to the General Counsel. Accordingly, the judge
found that the Respondent had the burden of showing that there
were substantially equivalent jobs within the relevant geo-
graphic area and that the discriminatees unreasonably failed to
apply for those jobs. Thus, she found that the Respondent, hav-
ing the burden of production on these issues, had produced no
evidence that the two men failed to mitigate their damages by
not seeking employment. The judge accordingly ordered the
Respondent to pay the full amount of net backpay, as amended,
set forth in the amended Compliance Specification.
On September 30, 2007, the Board issued its Decision. 351
NLRB 961. The decision modified the law relating to the bur-
den of proving mitigation of damages. The Board reaffirmed
and emphasized that a respondent has the “ultimate burden of
persuasion on the issue of a discriminatee’s failure to mitigate;
the burden remains on the respondent to prove that the dis-
criminatee did not mitigate his damages ‘by using reasonable
diligence in seeking alternate employment’” 351 NLRB 963,
citing NLRB v. Mastro Plastics, 354 F.2nd 170, 175 (2nd Cir.
1965). The Board also reaffirmed that the employer has the
burden of going forward (the burden of production) with evi-
dence of the availability of substantially equivalent jobs within
the relevant geographic area. However, the Board placed on the
General Counsel and the discriminatee, but not on the respon-
dent, the burden of going forward with evidence that the dis-
criminatee took reasonable steps to seek employment. The
Board therefore held that once the respondent produces evi-
dence that there were substantially equivalent jobs in the rele-
vant geographic area available for the discriminatee during the
backpay period, the General Counsel has the burden of produc-
ing evidence concerning the discriminatee’s job search.
The Board’s essential reason for this modification was that
the “information concerning the discriminatee’s job search is
within the knowledge of the General Counsel and/or the dis-
criminatee, and the burden of going forward normally falls on
the party having knowledge of the facts involved.” 351 NLRB
963.
The Board stated that the General Counsel may meet this
burden by producing the discriminatee to testify as to his efforts
to seek employment. If, however, it is not possible to obtain the
discriminatee’s testimony, the General Counsel’s burden may
be met by providing “other competent evidence” as to the dis-
criminatee’s job search, which may be documentary evidence
or the “testimony of someone familiar with the discriminatee’s
job search.”
The Board found that at the hearing in this case the Respon-
dent, through the testimony of its employment specialist, met
its burden of proving that there were substantially equivalent
jobs within the relevant geographic area. The Board held that
such evidence was sufficient to shift the burden of production
to the General Counsel to come forward with competent evi-
dence regarding the reasonableness of the discriminatees’ job
searches.
The Board held that the General Counsel and the discrimina-
tees had not met their burden as to their efforts to seek em-
ployment because no evidence was presented as to the nature
and extent of the job searches. Accordingly, the Board directed
that the hearing be remanded and reopened in order to permit
the parties to produce evidence as to the job searches.1
On October 11, 2007, the Board remanded this case to the
chief administrative law judge for assignment, and thereafter I
was assigned to hear and decide this case. A hearing was held
before me on February 26 and March 14, 2008 in Newark, New
Jersey. On the entire record, including my observation of the
demeanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing:
FINDINGS OF FACT
A. Leonard Sides
Sides was employed by the Respondent for 1-½ years. His
backpay period began on March 31, 1999 and ended on Sep-
tember 1, 2000. Sides filed an application for unemployment
insurance with the New Jersey Department of Labor on April
18, 1999. His application was denied on the ground that he was
not actively seeking work from April 18 through May 1, 1999.
On appeal, that determination was overruled with the Appeal
Tribunal finding that during that period of time he registered
for job placement with the Veterans Administration, made in-
quiries with friends and associates about job prospects and
consulted newspaper classified ads for job openings. It con-
cluded that Sides was able to work, was “available for work
and [was] making efforts to become employed.” Sides received
unemployment compensation from April 18, 1999 through
September 23, 1999.
1. Job Referrals by the Department of Labor
On April 29, 1999, Sides registered for work with the New
Jersey Department of Labor Employment Service (DOL). Since
he was a military veteran, his application was directed to the
veterans unit. He was interviewed by Salvatore LoSauro, an
employment counselor, as to his experience, education, and
capabilities. It was determined that inasmuch as warehouse-
men’s jobs were available he should be referred for such em-
ployment rather than retrained in a different field. Sides testi-
fied that he visited that office once weekly or twice weekly
from April, 1999 to the time of the hearing.
LoSauro testified that his office receives job orders from
employers who are actively seeking to hire workers. The job
orders list the classification of employee sought, experience
required and salary offered. LoSauro matched the job to the
applicant and, accordingly, referred Sides to jobs appropriate to

1 Judge Kern rejected the Respondent’s claims that Sides had a
medical condition which precluded him from working overtime during
the backpay period, and that Tharp improperly removed himself from
the New Jersey labor market when he moved to Florida. The Board
noted that no exceptions were filed to those findings. 351 NLRB 961
fn. 2. The Respondent renews its claims here, but inasmuch as it did
not file exceptions to Judge Kern’s finding in the initial hearing it can-
not raise those issues here.
ST. GEORGE WAREHOUSE, INC. 499
his experience. He gave Sides a Job Bank Referral Form for
presentation to the prospective employer which asked that the
interviewer return it to the Department of Labor. The Form
asked such questions as whether the employee appeared for the
interview, and whether he was hired or was not qualified.
LoSauro stated that some employers do not return the cards to
his office, and that he has none of the Job Bank forms for em-
ployers to whom he referred Sides, and did not know whether
any of them returned the cards to his office.
LoSauro testified that he did not always call the prospective
employer to whom the applicant is sent to ask whether the ap-
plicant went to the interview, completed an application, or was
hired. LoSauro referred Sides to the following jobs. Sides’ testi-
fied that he visited each company and completed an applica-
tion, but was not hired:
May 3, 1999 – The Davis Companies.
May 11 – Integro Staffing.
May 14 – Longstreet – forklift operator.
July 6 – Clark Holiday Inn – maintenance.
September 3 – Van Brunt, Inc. – long term (over 150 days)
job.
September 13 – The Wiz – long term job.
September 21 – Consumer Plastics – long term job.
September 30 – General Motors Corp. – long term job.
As to the referral to Van Brunt, above, the Respondent pro-
duced a letter dated October 7, 2002 from Dennis LaSalle, Van
Brunt’s warehouse manager. The letter stated that La Salle did
not sign the Job Bank Order Form, noting that he always signs
and returns the cards to the job bank when given by an appli-
cant. He concluded that his records show no application for
employment by Sides on file, “but reminder, that was back on
September 9, 1999.” Sides insisted that he went to Van Brunt
and filed an application there.
Although he does not follow up with the prospective em-
ployer, LoSauro asks the applicant whether he went to the in-
terview and for the results of the interview. However, he could
not recall whether Sides told him whether he went to any of
these jobs and did not recall Sides’ answers to any questions he
asked about the interviews. Nevertheless, LoSauro called Sides
a “very active job searcher.”
2. Independent Search for Work
Sides’ main experience is as a forklift operator. In Septem-
ber, 1999, he took a class arranged by the DOL given by the
National Safety Council and received a certificate as a forklift
operator.
In addition to his registration with the DOL, and referrals by
that agency, Sides stated that he searched for work by looking
at the classified advertisements in the Newark Star Ledger and
the free newspapers having employment guides which are dis-
tributed on the street. He credibly testified that as to certain ads
requiring a response by fax or e-mail he used those facilities at
the DOL.
He testified that his job searches and the locations of jobs he
would accept were necessarily limited by travel distances since
he does not own a car and therefore must travel by bus or train
to search for work. He limited his search to a 25 mile radius
from his home—which was the distance from his residence to
the Respondent’s facility. He also walks to prospective jobs
located within a one-half to one mile from his home.
Sides was referred by friends for work at Labor Ready and J
& J Staffing Resources, Inc., both temporary staffing agencies.
He worked for Labor Ready from October 25, 1999 to Novem-
ber 26, 1999, and at J & J from November or December, 1999
through about March 12, 2000. He was sent by those agencies
to jobs at various employers needing temporary help, and he
worked for as long as he was assigned, mostly two to five days
per week. His jobs with those agencies ended when the jobs he
worked on were completed. He did not work during the back-
pay period after his job with J & J ended on March 12, 2000.
Nevertheless, as set forth below, he looked for work while em-
ployed by J & J inasmuch as work with that company was not
full-time or steady, but involved being sent to other companies
on a temporary basis.2 Sides’ earnings at Labor Ready and at J
& J were included in the Specification and there is no dispute
concerning those computations.
In March, 1999, Sides began preparing a list of jobs he ap-
plied to, most with street addresses but all with their cities
named, at which he searched for work, filed applications for
employment but was not hired, as follows:3
Between March, 1999 and October, 1999:
A. Duie Pyle Trucking, Carteret – Newark Star Ledger
Vantage, Carteret – Star Ledger.
Later Searches for Work:
General Motors, Linden.
January 17, 2000 – TSI Containers, Avenel – Star Ledger.
January 24 – Merck, Rahway – janitorial – referred by a
friend. Received a response that he was overqualified.
January 31 – General Motors, Linden – dockwork; forklift -
referred by a friend.
February 7 – Purepac – Star Ledger.
February 14 – Ogden, Rahway – forklift; warehouse.
February 22 – Lancome, Clark – forklift – received a response
that his application was being reviewed.
February 29 – Linden Motor Freight, Linden – forklift - Star
Ledger.
February 29 – Vantage Distribution, Avenel – forklift.
March 9 – Inplant Packaging Systems, Metuchen – forklift –
Star Ledger - (spoke to Mike Sheperd).
March 21 – Concorde Beverage Corp., Elizabeth – forklift -
faxed resume.
March 22 – L’oreal–Cosmair, Clark – forklift – Star Ledger.
Faxed resume. Received a written reply stating that his re-
sume was received.
March 28 – Consumer Plastics, Inc., Rahway – (spoke to
Bob).
March 28 – GSI, Carteret (spoke to George) – Star Ledger.
April 3 – Swim and Play, Rahway - forklift (spoke to Miss
Egan) – Star Ledger.
April 27 – G & W Laboratories, Inc., South Plainfield – fork-

2 Sides did not look for work while employed by Labor Ready.
3 Sides’ testimony as to how he became aware of each job is noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD500
lift – faxed resume – Star Ledger.
May 15 – Ultimate Juice Company, Newark – forklift – Star
Ledger - faxed resume.
June 5 – L’oreal-Cosmair, Clark – forklift. Star Ledger - Re-
ceived a written reply stating that his resume was received.
June 12 – U.S. Gypsum, Clark – forklift – faxed resume.
Sides took a test on June 19 and was interviewed on June 26.
In early July he was informed in writing that he was not being
considered for the job.
July 10 – Q. Logistics, Atlanta (job was in New Jersey) – Star
Ledger – e-mailed resume.
July 17 – L’oreal-Cosmair, Clark – forklift – Star Ledger. Re-
ceived a written reply stating that his resume was received.
July 17 – Yellow Freight Systems, Elizabeth – forklift – Star
Ledger.
Early August - Filled out application at Source One temporary
agency – Star Ledger – Sides was hired and began work on
September 5 after the end of the backpay period.
On October 3, 2002, the Respondent sent a letter to certain
companies set forth above, inquiring whether Sides had applied
for employment. Replies were received as follows:
Vantage – The letter was returned with the envelope marked
“no such street.”
General Motors – “information not available.”
Concorde Beverage Corp. and Consumer Plastics – The enve-
lopes were returned marked “moved; left no forwarding ad-
dress.”
Inplant Packaging Systems – “I believe Mr. Sides did ap-
proach me for a job around this time. We were not hiring and
thus he has not worked for us.”
Ultimate Juice Company – “I joined Ultimate Juice Company
in September 2001 and do not have any record of Mr. Leo-
nard Sides Jr. applying for a job with us nor do I believe that
UJC was recruiting at that time.”
Yellow Freight Systems – “No application/resume on file at
the Elizabeth, NJ facility.”
Purepac – “Our company’s policy is to maintain resumes and
employment applications for a period of one year only. How-
ever, upon receipt of your [letter] we commenced a search of
our files and have been unable to locate any reference to your
Leonard Sides, Jr.”
Linden Motor Freight – “Our records going back to that date
are no longer available.”
The Wiz, GSI, Swim and Play, G & W Laboratories, Inc.,
Merck, Ogden - no response to the letters was received.
Sides testified concerning the evidence presented by the Re-
spondent’s employability specialist concerning advertisements
in the Newark Star Ledger. According to the Respondent, the
April 4, 1999 issue of the Star Ledger listed 35 ads for ware-
house jobs. Sides explained that he did not apply to some listed
jobs because they were located outside the area to which he
could readily travel by walking or by public transportation. He
stated that he may have phoned some of the companies listed to
find out were they were located and to ask about transportation.
He did not make a list of the companies he phoned since he was
not told to do that. He stated that he was only asked to record
those jobs that he applied to for work.
B. Jesus (Jesse) Tharp
Tharp had been employed by the Respondent for nearly six
years at the time of his discharge. His backpay period began on
March 16, 1999 and ended on September 1, 2000. On March
17, Tharp applied for unemployment compensation, listing on
his application his work experience as a forklift operator,
yardman, routing clerk, checker, and receiving clerk with com-
puter experience. He stated on the unemployment insurance
claim form that he was presently ready, willing and able to
work full time, and if offered a job he could begin work at
once.
Tharp received unemployment insurance checks from May
1, 1999 through June 26, 1999, at which time, apparently, his
checks stopped because it was determined by that agency that
he was discharged for misconduct. He completed an NLRB
backpay questionnaire dated June 24, 1999, which noted that he
never quit a job or was fired from a job since leaving the Re-
spondent, and was not unavailable for work for any reason. The
form listed no companies for which he had worked since his
discharge. However, he listed seven companies and their street
and city addresses at which he searched for work, and the re-
sults of such search, as follows4:
June 24 – R & J Trucking – not hiring
June 24 – Mcarthy Trucking – not hiring (Eddie)
June 25 – Vics Trans, S. Kearny – not hiring (Bettsie)
June 25 – Unitade Supply Co. – not hiring
June 25 – Quatum Express – not hiring (Trish)
June 28 – Worldwide Frt. – not hiring (Ilene)
June 28 – Ship to Shore Trans – not hiring (Bob)
Tharp was deceased at the time of this hearing and thus was
unavailable to testify. His mother, Gail Moskus, testified, how-
ever.5 She stated that she was living in Naples, Florida at the
time of her son’s discharge from the Respondent. One week
following his discharge he told her that he had been fired.
Thereafter, they spoke twice per month.
During their conversations, Tharp told his mother about his
search for work in New Jersey, telling her that he was “out
looking for employment” but could not find work. Moskus was
certain that her son told her where he was looking for work but
since those conversations took place nine years before this
hearing, she could not remember the specifics. She believed
that he did look for work “every day,” noting that he liked to
work, he was “used to working” and had to work in order to
support himself. Indeed, his unemployment insurance claim
form noted that he was the “main wage earner” in his house-
hold, and Moskus stated that he was unmarried. Moskus stated
that her son did not own a car and traveled to work and looked
for work using bus transportation.

4 The Respondent correctly notes that if the form was completed and
mailed to the Regional Office on June 24, Tharp could not have known
that he looked for work on June 25 or 28. Clearly, the fact that the form
was dated June 24 does not mean that it was completed or sent on that
date. It may have been dated on June 24 but the entries may not have
been completed until June 28.
5 Her name was improperly noted in the hearing transcript as
“Mastes.”
ST. GEORGE WAREHOUSE, INC. 501
Moskus recalled that Tharp was becoming very discouraged
at his failure to find work. She sent him about $200 to $300 in
increments of $50 while he was unemployed, and in about July,
1999, she suggested that he relocate to Naples, Florida where
work was available and he would be near his relatives who
could help him find work. Tharp agreed. Regional office com-
pliance officer Collette Sarro testified that Tharp told her that
he could not find a job in New Jersey and could not afford to
live in that state, and was moving to Florida.
In late August or early September, 1999, Moskus flew to
New Jersey and stayed with her son for about one week. They
then drove to Florida. While Moskus was in her son’s apart-
ment, she did not see him look for work in New Jersey since
they were busy packing up to leave. However, she saw many
newspapers in the apartment, and noted that he bought a news-
paper each day.
Tharp moved in with his mother in Naples. Moskus stated
that it took about two weeks for her son to get settled there, and
then he looked for work. She testified as to Tharp’s search for
work. She saw him read the help-wanted ads in the newspaper,
and believed that he applied for jobs that he found in the paper.
She stated that in about September, 1999 he applied for a fork-
lift driver’s job at a marina near her home on Bayshore Boule-
vard. He also applied for a warehouseman’s job at HEWS, a
lighting company on Airport Road in Naples. She drove him to
that job and he showed her the application he completed. He
also applied to other companies whose names she could not
recall.
Finally, he applied for a yardman and forklift driver’s job at
Naples Lumber & Supply Company on October 18, 1999 and
was hired the next day. He worked there through the end of his
backpay period, September 1, 2000. Naples Lumber was his
first job after arriving in Florida. Tharp’s earnings at Naples
Lumber were included in the Specification and there is no dis-
pute concerning those computations.
II. ANALYSIS AND DISCUSSION
A. General Principles
To be entitled to backpay, a discriminatee must make reason-
able efforts to secure interim employment. The discriminatee
must put forth an honest, good-faith effort to find interim
work; the law does not require that the search be successful.
Doubts, uncertainties, or ambiguities are resolved against the
wrongdoing respondent. Midwestern Personnel Services, 346
NLRB 624, 625 (2006) (citations omitted).
Even though a discriminatee must attempt to mitigate her loss
of income, the discriminatee is held only to a reasonable
rather than to the highest standard of diligence. Minette Mills,
Inc., 316 NLRB 1009, 1010 (1995).
The sufficiency of a discriminatee’s efforts to mitigate back-
pay are determined with respect to the backpay period as a
whole and not based on isolated portions of the backpay pe-
riod. Grosvenor Resort, 350 NLRB 1197, 1197 (2007).
B. Leonard Sides
It is clear that Sides engaged in a diligent, continuous search
for work. He utilized several different avenues in his search. He
filed an application for unemployment insurance on April 18,
1999, two weeks and four days after his discharge.
A discriminatee need not “instantly seek new work; rather
the test is whether, on the record as a whole, the employee has
diligently sought other employment during the entire backpay
period.” Saginaw Aggregates, Inc., 198 NLRB 598, 598 (1972).
However, if the discriminatee unreasonably delays an initial
search, the Board will toll backpay for that period and will start
backpay if and when a reasonably diligent search begins.
Marlene Industries Corp., 183 NLRB 50, 54–55, 59 (1970).
Generally, the Board has determined that it is not unreasonable
for a discriminatee to begin his search for work within the two-
week period following his discharge, and that if a search for
work has begun in that period of time, backpay runs from the
date of the discharge. Grosvenor Resort, 350 NLRB 1197, 1199
(2007). Here, Sides’ search for work began virtually within two
weeks of his discharge, and continued throughout the backpay
period.
The Board has stated that “registration with a state unem-
ployment office is prima facie evidence of a reasonable search
for employment.” Avery Heights, 349 NLRB42, 47 (2007);
Bauer Group, 337 NLRB 395, 399 (2002); Cassis Management
Corp., 336 NLRB 961, 968 (2001); Allegheny Graphics, 320
NLRB 1141, 1145 (1996). Accordingly, Sides’ registration
with the New Jersey unemployment office without more estab-
lishes that he engaged in a reasonable search for work.
Sides also registered with the New Jersey Department of La-
bor. He extensively utilized the services of that office in an
effort to find employment. He faxed and e-mailed resumes to
companies which advertised for help. He took a certification
course in forklift operation arranged by that office in order to
meet insurance companies’ requirements that forklift operators
be certified. He prepared a professional resume which set forth
his experience and qualifications. Such efforts clearly show that
he was preparing to resume work in his main occupation and
not to remain idle.
The DOL referred him to eight jobs, all of which, I find ac-
cording to his credited testimony, he visited. As to the referral
to Van Brunt, the letter from the warehouse manager does not
constitute proof that Sides did not apply for that job. It is par-
ticularly noteworthy that the manager said that any application
would have been made more than three years before his report-
ing on Side’s alleged visit.
In addition to his registrations with those two agencies, Sides
conducted an independent search for work. He looked for work
in newspapers, visited prospective employers and asked his
friends if they knew of any companies who were hiring.
The fact that he limited his search to places he could travel to
by public transportation or by foot is reasonable and under-
standable. A discriminatee cannot be required to purchase or
lease a car or take a taxi if he is unable to afford those means of
transportation. The Board has recognized that the “individual
circumstances” of the discriminatee must be taken into consid-
eration in determining whether he has exercised reasonable
diligence when searching for interim work. Such factors in-
clude “limited transportation.” Grosvenor Resort, 350 NLRB
1197 (2007) and “personal limitations.” Mastro Plastics Corp.,
136 NLRB 1342, 1359 (1962). Further, Sides traveled by pub-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD502
lic transportation to work with the Respondent so his search for
jobs with that limitation is consistent with his obligation to
obtain comparable work.
Sides also asked his friends for sources of work and in fact
obtained the two temporary agency jobs, Labor Ready and J &
J from his friends’ suggestions. The fact that he accepted work
at these agencies, although he would have preferred full time
work demonstrates that he conscientiously sought to work. It is
also significant to note that he sought permanent employment
and continued to seek such employment even after he was hired
by the temporary agencies. Allegheny Graphics, 320 NLRB
1141, 1145 (1996).
His work at those two agencies continued as long as there
was work for him. His work there ended only when his assign-
ments ceased. Importantly, Sides looked for work even while
he was employed at J & J. The records establish that he applied
for work at a total of 13 prospective employers in January,
February and March, 2000 while he was engaged in temporary
work at J & J.
Sides further exhibited his diligence in seeking work by ap-
plying to 25 jobs from March, 1999 to August, 2000. The Re-
spondent questions whether he actually applied for such jobs,
but the detail provided in his listings of jobs applied for was
extremely thorough and therefore his testimony that he actually
made such applications must be credited. Thus, the listings
noted how he became aware of the job, the names of the em-
ployers, their addresses, cities, types of work applied for, the
names of the interviewers he spoke to, and responses from
these prospective employers. Such specific information estab-
lishes that he did, as he credibly testified, apply for work at all
the listed companies.
Thus, he received written responses from Lancome/L’oreal
that his three applications were being considered. He also re-
ceived a letter from U.S. Gypsum confirming that he applied
for work on June 19, 2000, took a skills assessment test and
was interviewed, but a position was not offered to him. Signifi-
cantly, a letter from Inplant Packaging stated that the writer
believed that Sides asked for work but the company was not
hiring at that time. Such documentary evidence establishes that
Sides actually applied for work at these companies, and
strongly supports a finding that he applied at all the companies
he testified about.
As noted above, the Respondent wrote to certain companies
seeking confirmation that Sides applied for work. The letters
were sent two to two and one-half years after Sides’ applica-
tions were made. None of the responses that the Respondent
received to its inquiries show that Sides did not make such
applications. As to those marked “moved left no forwarding
address” the passage of time may account for such a notation.
Others said they had no information or the records were too old
to have been retained. Such evidence does not prove that Sides
did not apply to those companies.
The Respondent’s argument in its brief (p. 10) that employ-
ers Ultimate Juice, Yellow Freight and Purepac denied that
Sides had applied for work is overstated. Those companies
simply stated that they had no record of Sides applying for a
job, or had no application from Sides in its files. That does not
mean that Sides did not apply. It only means that no application
had been located.
The Respondent argues that Sides’ search for work demon-
strates that there were certain periods of time that he did not
look for work. But the Board has stated that “after an employee
has been discriminatorily discharged, and while unemployed,
he is not required to spend 8 hours a day, 5 days a week search-
ing for work . . . .” Baker Electric, 351 NLRB 515, 535 (2007).
“The entire backpay period must be scrutinized to determine
whether throughout that period there was, in the light of all
surrounding circumstances, a reasonable continuing search such
as to foreclose a finding of willful loss.” Cornwell Co., 171
NLRB 342, 343 (1968).
The evidence establishes that Sides conscientiously searched
for work using many available methods. It is clear that he made
an honest, good-faith effort to find employment, registering
with two agencies, visiting prospective employers, faxing and
e-mailing his resume to others, and actually working during the
backpay period at two temporary agencies. Taking into consid-
eration his “individual circumstances,” particularly his limita-
tions to job locations because of his use of public transporta-
tion, his search was diligent, sufficient and reasonable.
Jesse Tharp
The remedy of reinstatement and backpay is not a private
right, but a public right granted to vindicate the law against one
who has broken it. Its object is to discourage discharges of
employees contrary to the statute and thereby vindicate the
policies of the National Labor Relations Act. The statute au-
thorizes reparation orders, not in the interest of the employees,
but in the interest of the public, They are not private rewards
operating by way of penalty or of damages. Clayton-Willard
Sales, 126 NLRB 1325, 1326–1327 (1960).
In Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941),
the Supreme Court affirmatively noted that the Board has not
mechanically applied its backpay remedies, but has striven “to
attain results in diverse, complicated situations” to effectuate
the purposes of the Act.
In assessing Tharp’s search for work and consistent with the
above principles, I cannot ignore the unique circumstances
presented here or mechanically apply legal doctrine. I must
view his search in the context of ensuing events including his
death prior to the Board’s decision modifying the discrimina-
tee’s burden of proof.
The Respondent is correct that Tharp was instructed to re-
cord, in writing, his search for work. Tharp’s written record of
his search for work is sparse. However, the record supports a
finding that he did engage in a diligent search for work. Thus,
only one day after his discharge he applied for unemployment
insurance. “Registration with a state unemployment office is
prima facie evidence of a reasonable search for employment.”
Avery Heights, 349 NLRB 42, 47 (2007), and cases cited
above. That single act shows that he was not content to sit back
and be idle. He affirmed in his application for unemployment
compensation that he was ready willing and able to work full
time immediately. Accordingly, Tharp’s registration for unem-
ployment insurance, without more, establishes that he engaged
ST. GEORGE WAREHOUSE, INC. 503
in a reasonable search for work.
Tharp wrote on the Board’s compliance questionnaire that he
applied to work at seven jobs in the space of three days. He
listed the names of five people he spoke to at the seven pro-
spective employers. I credit mother Moskus’ uncontradicted
testimony that Tharp told her that he was searching for work,
and he mentioned the businesses he visited. It is understandable
that she could not remember the specifics of his search in New
Jersey because of the passage of nine years since her conversa-
tions with her son. Compliance officer Sarro also testified that
Tharp told her that he could not find work in New Jersey.
I find that Tharp engaged in a reasonable, diligent, good-
faith effort to find work in New Jersey. I credit his mother’s
testimony that he told her the places he looked for work, which
was supported by his notation that he applied for positions at
seven prospective employers and his registration for unem-
ployment compensation.
In arriving at this finding I make two assumptions which I
believe are founded in logic. First, a mother knows her child,
perhaps better than anyone else. The fact that Tharp began
work at the Respondent at age 23 and was employed there until
he was unlawfully fired at the age of 29 shows that he had a
strong work ethic. Moskus’ testimony that Tharp had to work to
support himself and always worked are completely believable.
The fact that he searched for work diligently in Florida, found
work there very quickly and worked at the same job until the
end of the backpay period and thereafter is strong evidence that
he conscientiously searched for work after his discharge in New
Jersey and until he moved to Florida. What is required is that
Tharp’s efforts be “consistent with the inclination to work and
to be self-supporting.” Airport Park Hotel, 306 NLRB 857, 861
(1992). I find that his efforts were consistent with such an in-
clination as demonstrated by his long work record at an early
age and the fact that he had to be self-supporting.
The second assumption I make is that, as a young man,
Tharp would have preferred to live independently earning his
own way and would not have wanted to move in with his
mother in another state. However, he apparently had no choice.
He had to move to Florida because, after about five months he
could not find work in New Jersey and was forced to live with
his mother in Florida and search for work there. It seems clear
that if he found work in New Jersey he would have accepted
such work and remained in that state and continued to live in-
dependently.
I accordingly find that Tharp, based on his need to work and
his work ethic as expressed by his mother and proven by his
long tenure at the Respondent, and the fact that Tharp told his
mother that he was looking for work and told her the names of
the businesses he applied to, made a reasonable, diligent, hon-
est effort to find work in New Jersey. I also find that Tharp
engaged in a diligent search for work in Florida. Mrs. Moskus
testified as to specific prospective employers and locations she
drove him to in Florida. He found and obtained a job quickly,
after only about one month after his arrival in that state. He
remained employed at that job through the end of the backpay
period and thereafter. If he diligently searched for work in Flor-
ida he must have made the same effort in New Jersey.
There is another aspect of this case which lends support to a
finding that Tharp conducted an honest, reasonable and diligent
search for work. At the time of the initial compliance hearing in
2002, counsel for the General Counsel apparently believed,
based on then current law, that producing Tharp and having
him testify was not necessary to prove her case. The Board’s
decision in this case modifying the law by placing the burden
on the discriminatee to prove his search for work was issued
seven and one-half years after Tharp’s unlawful discharge. The
decision was issued at a time when Tharp was deceased. Not
only was Tharp not available to testify, but apparently due to
the passage of time, his mother could not recall what he told her
concerning specific places he looked for work.
I do not believe that it would be appropriate or fair to the in-
nocent, unlawfully discharged employee to require, in the cir-
cumstances of this unique case, more specific evidence of
Tharp’s search for work than has already been provided.
“Doubts, uncertainties, or ambiguities are resolved against the
wrongdoing respondent.” Midwestern Personnel Services,
above.
Accordingly, because of the unique circumstances of this
case, I believe that a finding is warranted that the General
Counsel has established that Tharp conducted a reasonable
search for employment, and has satisfied his obligation to seek
interim employment.
C. The Respondent’s Expert
I have carefully considered the testimony of Donna Flannery,
the Respondent’s employability expert and the documentary
evidence presented in connection with her testimony. Her re-
port, prepared in August, 2002 and received in evidence at the
October, 2002 hearing, involved an analysis of the labor market
which existed within a 25-mile radius of the Respondent’s fa-
cility, and the labor market outlook in the entire state of New
Jersey. Her report included samples of newspaper advertise-
ments she examined. A separate exhibit consisting of the ads
was received in evidence. The exhibit comprised a ¾ inch thick
stack of newspaper ads for warehouse workers, including fork-
lift operators which appeared in the Bergen Record and the
Newark Star Ledger during the backpay period.
Flannery concluded that a “sufficient number of jobs existed
within the identified labor market for positions such as Ware-
house Worker, Forklift Operator, and other similar jobs . . . .
during the time period of April, 1999 through September, 2000.
The research demonstrated that a significant number of job
postings were advertised as open and available during this time
period.” She also gave her opinion that neither Sides nor Tharp
made a “diligent effort to seek and obtain new employment
. . . . [J]ob efforts did not even consist of a minimal amount of
effort to locate employment.” She stated that the advertisements
could have been reviewed for openings, and offered the opinion
that there were many free resources available, such as library
reference material and internet jobsites which the discrimina-
tees could have utilized to locate jobs.
The Board has generally given little weight to such evidence.
“It avails a Respondent nothing to introduce a batch of newspa-
per ads… Such advertisements of jobs in newspapers generally
are irrelevant, and are so here, because the evidence does not
show, for example, whether the jobs would have been available
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD504
had [the discriminatees applied, nor whether [the discrimina-
tees] would have been hired had [they] applied.” Bauer Group,
337 NLRB 395, 398 (2002); Groves Truck & Trailer, 294
NLRB 1, 5 (1989).
Flannery did not speak with Sides or Tharp and did not con-
tact any of the employers who advertised for help. In Parts
Depot, Inc., 348 NLRB 152, 152 fn. 6 (2006), the Board stated
that, on “numerous occasions [the Board] has refused to rely on
expert testimony, similar to that offered here, where the expert
is only ‘referring to the probability of job opportunities, not to a
given individual’s situation’ and he ‘forms his opinions’ about
the claimant without having any personal knowledge of the
latter’s personal circumstances.” See United States Can Co.,
328 NLRB 334, 343 (1999); Food & Commercial Workers
Local 1357, 301 NLRB 617, 621 (1991).
Here, Flannery did not consider the unique circumstances
that limited the opportunities of Sides and Tharp such as the
necessity that any jobs they would consider must be accessible
by public transportation or within walking distance from their
homes. Indeed, when asked about certain of the ads, Sides testi-
fied that he may have called some advertisers and learned that
the jobs were located outside his ability to travel. Other ads had
addresses listed which he immediately believed were too far for
him to travel. It must be noted, however, that Sides did apply to
advertised jobs. Thus, as set forth above, he applied to 16 jobs
advertised in the Newark Star Ledger.
CONCLUSIONS
The Respondent has the “ultimate burden of persuasion on
the issue of a discriminatee’s failure to mitigate; the burden
remains on the respondent to prove that the discriminatee did
not mitigate his damages ‘by using reasonable diligence in
seeking alternate employment’” St. George, 351 NLRB 961,
963. As set forth above, based on the evidence set forth in the
initial and remanded hearings, I find that Leonard Sides and
Jesse Tharp have each made diligent, reasonable searches for
work. I therefore conclude that the Respondent has not met its
burden of proving that Sides and Tharp did not use reasonable
diligence in seeking alternate employment. I accordingly find
and conclude that they are entitled to the backpay amounts set
forth in Judge Kerns’ decision as set forth below.
Based on the above, I issue the following recommended6
ORDER
The Respondent, St. George Warehouse, Kearney, New Jer-
sey, its officers, agents, successors, and assigns, shall make the
following employees whole by paying to them the sums set
forth below, with interest on such amounts to be computed
thereon in the manner prescribed in the Board’s Decision and
Order and making the appropriate deductions from said
amounts of any tax withholdings required by state and federal
laws:
Leonard Sides: $26,447.90.
Jesus (Jesse) Tharp: 14,649.79.
Inasmuch as Tharp is deceased, the backpay due him shall be
paid to the legal administrator of his estate or to any person
authorized to receive such payment under applicable state law.
United States Service Industries, 325 NLRB 485, 487 (1998).

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.