St. George Warehouse Memo

General Counsel Meisburg has recently issued a memo offering guidance for regional attorneys' application of the St. George Warehouse case (see here for description of the decision).  According to the description by BNA's Daily Labor Report (subscription required):  

The board in St. George Warehouse reaffirmed that an employer attempting to show that the worker failed to mitigate back-pay damages must produce evidence that substantially equivalent jobs were available in the relevant geographic area during the relevant period, Meisburg said in the memo. However, the board for the first time "placed on the General Counsel the burden--once the [employer] produces evidence on the first element--to produce competent evidence that the discriminatee took reasonable steps to seek those jobs," Meisburg said. He explained that the employer "continues to bear the ultimate burden of proof as to its contention that the discriminatee failed to mitigate damages by making a reasonable search for work" . . . [and] emphasized that St. George Warehouse simply reinforces the current requirements of the NLRB Casehandling Manual "that Board agents should investigate a discriminatee's search for work and, to that end, remain in regular contact with discriminatees and remind them of their need to mitigate and keep records of their search." . . .

[Employer's Evidence of Substantially Equivalent Jobs]

To prove failure to mitigate, the employer must show that substantially equivalent jobs were available in the relevant geographic area during the relevant period, the general counsel said. He found that regional personnel during the investigation stage of the case should "seek to determine the specific evidence upon which the [employer] intends to rely," learn whether the employer intends to call an expert witness, and find out the data on which the expert intends to rely. If the employer intends to show a lack of diligence in looking for work, regional personnel "should be prepared, where appropriate, to argue that the proffered evidence does not reliably establish either that those jobs were substantially equivalent or that the particular discriminatee could have obtained those jobs," Meisburg said.

He explained that "[d]ifferences in specifics such as location, type of work, rate of pay, and other working conditions may demonstrate that the [employer's] proffered evidence does not establish that the jobs were substantially equivalent." In addition, regional personnel must conduct their own investigation regarding the availability of jobs, including by obtaining data from the Labor Department's Bureau of Labor Statistics and interviewing union officials and state and local government officials about the availability of employment for those with similar skills and experience, the general counsel said. He observed that regional personnel may have to call their own experts to rebut the employer's expert testimony.

[General Counsel's Showing of Reasonable Steps To Seek Work]

 Under St. George Warehouse, the general counsel now has the burden of showing that the illegally fired worker took reasonable steps to seek work, Meisburg said. He explained that during the investigation stage of the case, regional personnel should advise alleged discriminatees of their responsibility to seek interim employment and direct them "to maintain careful notes and records of the entire search for work." 

Relevant actions "include registering with state or private employment services, checking newspaper and internet advertisements, visiting employers, and seeking leads from friends and relatives," the general counsel said. He found that factors that may limit job opportunities--including age, health, education, job skills, language skills, employment history, disabilities, and access to a car--also must be taken into consideration. He pointed out that "a discriminatee is not normally required to move or to accept employment in a lower skilled or lower wage job."

I intentionally left much of the guidance to illustrate how complicated these cases will now be on a routine basis.  There was always the possibility of disputes, but as I noted in my original post, things were simplified by the presumption that the wrongdoer bore the burden of any uncertainties.  The Board's flipping of that burden in many instances will make things more complicated, more costly to litigate, and create more delay in employees receiving backpay.  The Board also needs to be prepared for dueling testimony by economic experts, which it currently does not have to deal with much.  Although I have no idea the extent to which ALJs and Board members will have the experience to weigh such testimony, I suspect that many do not, which is going to cause a serious problem because the economics involved are often highly technical and requires a lot of mathematical understanding.  The NLRA's ban on the NLRB hiring economic researchers is indicative of the problems that may result. 

Of course, the Board didn't leave the GC many options--perhaps a new Board will modify the rule after realizing its effects.

Hat Tip:  Dennis Walsh

-JH