On October 3, 2008, the NLRB’s General Counsel issued a new Guideline Memorandum discussing his burden of production under St. George Warehouse, 351 NLRB No. 42 (2007), a September 2007 Board decision that increases the likelihood that an employee’s mitigation efforts will become a major focus of litigation in Board compliance proceedings. The memorandum discussed ways in which regional offices should prepare to litigate mitigation issues. 

In St. George Warehouse, the Board determined that the General Counsel shared the burden of production on the issue of whether an employee mitigated losses by seeking other employment. Prior to St. George Warehouse, the employer bore the entire burden of production and persuasion on the mitigation defense. The St. George Warehouse decision clarified that the employer bears the ultimate burden of proving that an employee failed to mitigate losses, but shifted a portion of the burden of production to the General Counsel. While the employer must still produce evidence showing that equivalent jobs were available during the backpay period in the relevant geographic area, the General Counsel must produce evidence showing that the employee took reasonable steps to seek those available jobs.

To comply with his burden of producing evidence that an employee mitigated losses, the General Counsel advised the Board’s regional offices to investigate thoroughly whether an employee has conducted a reasonable search for work. This includes adducing evidence that the employee has, for example, registered with state or private employment services, checked newspaper and internet advertisements, visited employers, and sought leads from friends and relatives on available employment. The General Counsel suggested that regional offices have employees keep written documentation of their efforts to seek employment so that a detailed record would be available.

In addition, the General Counsel advised that regional offices seek to discredit evidence of equivalent jobs that may be presented by an employer. Specifically, he recommended that regional offices argue (when applicable) that the evidence offered by the employer does not reliably establish either that available jobs were substantially equivalent or that the particular employee could have obtained those jobs. Differences in location, type of work, rate of pay, and other working conditions should be emphasized to rebut the employer’s evidence.