National Labor Relations Board v. St. George Warehouse, Inc.
645 F.3d 666
| 3rd Cir. | 2011Background
- In March 1999, St. George discharged forklift-operator Sides and warehouseman Tharp for alleged union activity.
- An ALJ ordered reinstatement and backpay; the Board affirmed and enforced, with Sides and Tharp later declining reinstatement in 2000.
- Backpay periods ran from each discharge dates (March 31, 1999 for Sides; March 16, 1999 for Tharp) through September 1, 2000.
- A 2002 compliance hearing estimated additional backpay; no live testimony was initially offered by discriminatees or GC.
- In 2007, the Board adopted a new burden-shifting framework: employer must prove lack of diligent search; GC/employee must prove reasonable steps to pursue substantially equivalent work.
- Remand hearings in 2008 led to ALJ findings that Sides and Tharp had made diligent efforts; the Board affirmed and the Third Circuit later remanded due to New Process Steel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is substantial evidence for Sides's diligence finding | Sides exercised reasonable diligence | St. George contends diligence was insufficient | Yes; substantial evidence supports diligence |
| Whether there is substantial evidence for Tharp's diligence finding | Tharp sought work after moving to Florida | Tharp's search evidence was inadequate | Yes; substantial evidence supports diligence |
| Whether Moskus's testimony on Tharp's search was properly admitted | Testimony was admissible under flexible evidentiary standards | Testimony relied on hearsay | Yes; admissible given Board discretion and lack of prejudice |
| Whether the Board properly applied the revised burden-shifting framework on remand | GC/employee must prove reasonable steps to pursue jobs | Employer burden remains primary | Yes; Board properly applied framework, and evidence supports mitigation findings |
| Whether the backpay award reflects reasonable mitigation under the NLRA | Backpay amounts appropriate given evidence of job search | Backpay overstates damages if search was insufficient | Yes; substantial evidence supports backpay amounts |
Key Cases Cited
- Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203 (1964) (backpay aims to reimburse losses and deter improper conduct)
- NLRB v. Madison Courier, Inc., 472 F.2d 1307 (D.C. Cir. 1972) (two-fold objective of backpay to reimburse losses and deterrence)
- NLRB v. Midwestern Personnel Servs., Inc., 508 F.3d 418 (7th Cir. 2007) (unemployement office registration as prima facie evidence of diligence)
- Church Homes, Inc., 349 N.L.R.B. 829 (NLRB 2007) (registration with unemployment office supports reasonable search)
- NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2d Cir. 1965) (relatives' testimony about search admissible when discriminatee unavailable)
- Kawasaki Motors Mfg. Corp., USA v. NLRB, 850 F.2d 524 (9th Cir. 1988) (holistic view of mitigate efforts; not isolated inactivity periods)
- NLRB v. Arduini Mfg. Corp., 394 F.2d 420 (1st Cir. 1968) (reasonable diligence standard can be satisfied by varied efforts)
- NLRB v. Westin Hotel, 758 F.2d 1126 (6th Cir. 1985) (geographic limitations on search reasonable given transportation constraints)