## Facts

- In an unfair-labor-practice case, the National Labor Relations Board (NLRB) found that St. George Warehouse (St. George) violated the NLRA by discharging two employees: forklift operator Leonard Sides and warehouse worker Jesse Tharp.
- The NLRB ordered St. George to reinstate the employees and make them whole, including backpay.
- In the compliance phase, the NLRB’s regional director issued a compliance specification stating the backpay amounts allegedly owed to Sides and Tharp.
- St. George contested the backpay amounts and asserted a mitigation (job-search) defense, arguing that Sides and Tharp failed to reduce their losses by making reasonable efforts to obtain interim employment.
- At the backpay hearing, the NLRB’s General Counsel presented no evidence about Sides’s or Tharp’s efforts to search for work during the backpay period.
- St. George presented testimony from vocational employability specialist Donna Flannery, who testified that comparable jobs were available in the relevant labor market during the backpay period and that Sides and Tharp had not tried to find work.
- Flannery had not interviewed Sides or Tharp, and St. George did not present testimony from any witness with personal knowledge of the employees’ job-search efforts.
- The ALJ ruled that St. George bore the burden of proving failure to mitigate and concluded St. George had not carried that burden; the ALJ recommended backpay awards.
- St. George filed exceptions, arguing that the General Counsel should have been required to come forward with evidence of reasonable job-search efforts.

## Issues

1. In an NLRB backpay compliance proceeding, when the employer contests backpay based on an alleged failure to mitigate through a job search, which party bears the burden of producing evidence on the reasonableness of the discriminatee’s efforts to find interim work?
2. When the General Counsel has presented no job-search evidence, should the Board affirm the backpay awards or remand for further proceedings under the correct allocation of the production burden?

## Decision

- The Board held that, in backpay proceedings where a respondent places mitigation-by-job-search in dispute, the General Counsel bears the burden of production to present evidence that the discriminatee made reasonable efforts to obtain interim employment during the backpay period.
- The Board distinguished the burden of production (coming forward with evidence) from the ultimate burden of persuasion, and stated that the respondent still may attempt to prove that interim employment was not reasonably sought and that backpay should be reduced.
- Applying this allocation, the Board concluded the record developed under the ALJ’s approach did not resolve the mitigation issue under the proper standard because the General Counsel had offered no job-search evidence.
- The Board remanded the case for further evidentiary proceedings so the parties could litigate mitigation under the Board’s allocation of the burden of production.

## Legal Principles

- Backpay under the NLRA is a make-whole remedy intended to restore employees, as nearly as possible, to the position they would have occupied absent the unfair labor practice.
- Discriminatees have a duty to mitigate interim losses by making reasonable efforts to find interim employment.
- In backpay litigation, the Board can separate (a) the burden of production—who must come forward with evidence on a point—from (b) the burden of persuasion—who must ultimately convince the factfinder.
- When mitigation through a job search is contested, the General Counsel must produce evidence of the discriminatee’s reasonable job-search efforts as part of the evidentiary showing supporting a backpay award.
- When a case has been tried under a different understanding of who must present mitigation evidence, the Board may remand to allow development of a record that fits the controlling burden allocation.

## Conclusion

The Board reassigned the burden of producing evidence on job-search mitigation to the General Counsel in backpay compliance proceedings and, because the existing record contained no such evidence and was developed under a different burden allocation, remanded for further proceedings to determine whether Sides and Tharp reasonably sought interim employment and how that affects backpay.


NLRB v. St. George Warehouse & Merchandise Drivers Local No. 641, 351 N.L.R.B. 961 (2007)