St. George Warehouse, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 20, 2008

22-CA-023223 (N.L.R.B. May. 20, 2008)

JD(NY)-18-08
Kearney, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ST. GEORGE WAREHOUSE, INC.
and Case No. 22-CA-23223
22-CA-23259
22-CA-23270
MERCHANDISE DRIVERS LOCAL NO. 641,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Saulo Santiago, Esq., Newark, NJ,
for the General Counsel.
John A. Craner, Esq. (Craner, Satkin & Scheer, P.C.),
Scotch Plains, NJ, 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 Circuit entered a judgment enforcing the Board’s Order. 261 F.3rd 493, and on June 5,
2001, the court entered its amended judgment 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 Respondent 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’ 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 geographic
area and that the discriminatees unreasonably failed to apply for those jobs. Thus, she found
that the Respondent, having the burden of production on these issues, had produced no
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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 No. 42. The decision
modified the law relating to the burden 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
discriminatee did not mitigate his damages ‘by using reasonable diligence in seeking alternate
employment’” 351 NLRB slip op. at 4, 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 evidence 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 respondent, the burden of going forward with evidence that the
discriminatee took reasonable steps to seek employment. The Board therefore held that once
the respondent produces evidence that there were substantially equivalent jobs in the relevant
geographic area available for the discriminatee during the backpay period, the General Counsel
has the burden of producing 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
discriminatee, and the burden of going forward normally falls on the party having knowledge of
the facts involved.” 351 NLRB slip op. at 4.
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 discriminatee’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 Respondent, 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 evidence
regarding the reasonableness of the discriminatees’ job searches.
The Board held that the General Counsel and the discriminatees had not met their
burden as to their efforts to seek employment 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

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 No. 42, slip op. at 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 cannot raise those issues here.
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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 following:
I. Findings of Fact
A. Leonard Sides
Sides was employed by the Respondent for 1½ years. His backpay period began on
March 31, 1999 and ended on September 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 inquiries
with friends and associates about job prospects and consulted newspaper classified ads for job
openings. It concluded 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 warehousemen’s
jobs were available he should be referred for such employment rather than retrained in a
different field. Sides testified 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 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
employers 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 applicant went to the interview, completed an application, or
was hired. LoSauro referred Sides to the following jobs. Sides’ testified that he visited each
company and completed an application, 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.
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• 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 produced 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 applicant. 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 employer, LoSauro asks the
applicant whether he went to the interview 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 September, 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 distributed 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
November 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
backpay period after his job with J & J ended on March 12, 2000. Nevertheless, as set forth
below, he looked for work while employed 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 applied to, most with street
addresses but all with their cities named, at which he searched for work, filed applications for

2 Sides did not look for work while employed by Labor Ready.
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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
resume 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 –
forklift – faxed resume – Star Ledger.
• May 15 – Ultimate Juice Company, Newark – forklift – Star
Ledger - faxed resume.
• June 5 – L’oreal-Cosmair, Clark – forklift. Star Ledger -
Received 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.
Received a written reply stating that his resume was

3 Sides’ testimony as to how he became aware of each job is noted.
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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
envelopes were returned marked “moved; left no
forwarding address.”
• Inplant Packaging Systems –“I believe Mr. Sides did
approach 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. Leonard 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.
However, 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 Respondent’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 warehouse 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
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computer 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
Respondent, 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 results 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, however.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 household, 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.
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
compliance 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

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.”
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her son for about one week. They then drove to Florida. While Moskus was in her son’s
apartment, 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
newspaper 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
forklift driver’s job at a marina near her home on Bayshore Boulevard. 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 dispute
concerning those computations.
II. Analysis and Discussion
A. General Principles
To be entitled to backpay, a discriminatee must make reasonable
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 backpay are
determined with respect to the backpay period as a whole and not
based on isolated portions of the backpay period. Grosvenor
Resort, 350 NLRB No. 86, slip op. at 2 (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
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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 No. 6, slip op. at 3 (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 unemployment office is prima facie
evidence of a reasonable search for employment.” Avery Heights, 349 NLRB No. 8, slip op. at 6
(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 establishes that he engaged in a
reasonable search for work.
Sides also registered with the New Jersey Department of Labor. 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 according 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 particularly noteworthy that
the manager said that any application would have been made more than three years before his
reporting 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 understandable. 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
consideration in determining whether he has exercised reasonable diligence when searching for
interim work. Such factors include “limited transportation.” Grosvenor Resort, 350 NLRB No. 6,
slip op. at 3 (2007) and “personal limitations.” Mastro Plastics Corp., 136 NLRB 1342, 1359
(1962). Further, Sides traveled by public 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 assignments ceased. Importantly, Sides looked for work even while
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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 applying to 25 jobs from March,
1999 to August, 2000. The Respondent 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 employers, 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 establishes 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 received 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. Significantly, 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’
applications 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 employers 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 demonstrates 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 searching for work….” Baker Electric, 351 NLRB No. 35,
slip op. at 21 (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
consideration his “individual circumstances,” particularly his limitations to job locations because
of his use of public transportation, his search was diligent, sufficient and reasonable.
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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 authorizes 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,
1326-27 (1960).
In Phelps Dodge Corp. v. N.L.R.B., 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 discriminatee’s burden of proof.
The Respondent is correct that Tharp was instructed to record, 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 No. 8, slip
op. at 6 (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
unemployment insurance, without more, establishes that he engaged 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
prospective 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 conversations 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 unemployment 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
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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 inclination
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
independently.
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, honest 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 Florida 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 innocent, unlawfully discharged
employee to require, in the circumstances 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 report, 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 facility, and the labor market outlook in the entire state of New Jersey. Her report
included samples of newspaper advertisements she examined. A separate exhibit consisting of
the ads was received in evidence. The exhibit comprised a ¾ inch thick stack of newspaper ads
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for warehouse workers, including forklift 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 Warehouse 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 job sites which the discriminatees 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 newspaper 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 had [the discriminatees applied, nor whether [the
discriminatees] 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 contact any of the employers
who advertised for help. In Parts Depot, Inc., 348 NLRB No. 9, slip op. at 1, 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 testified 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 slip op. at 4. 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.
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Based on the above, I issue the following recommended6
ORDER
The Respondent, St. George Warehouse, Kearney, New Jersey, 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).
Dated, Washington, D.C., May 20, 2008.
____________________
Steven Davis
Administrative Law Judge

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 purposes.