Back Pay Approved for Fired Union Organizers

     (CN) – Two forklift operators deserve back pay after they were illegally fired for their union organizing in 1999, the 3rd Circuit ruled, upholding a National Labor Relations Board award.

     In 2000 an administrative law judge ordered St. George Warehouse to rehire Jesus Tharp and Leonard Sides after determining that the company had discriminated against the two by placing them under surveillance and then firing them for their union activities.
     Tharp and Sides declined the reinstatement offer, and St. George paid them a portion of the pay they would have earned between the time they were fired and their decision not to return to work. The company argued that the workers were not entitled to the full back pay because they had not proven they were actively looking for work during the interim.
     An administrative law judge rejected St. George’s argument and ordered it to make additional payments to the two, saying that the company bore the burden of proof to show that Tharp and Sides had not been active enough in their search for new jobs.
     Tharp ultimately died as the case bounced to and from the NLRB on appeal, but he and his fellow organizers’ claims prevailed. In 2008, Sides was awarded $26,447 and Tharp’s estate won $14,646.
     St. George appealed the NLRB’s final award to the Philadelphia-based federal appeals court, arguing that Tharp’s award was based on hearsay evidence given by his mother. It also said it should not have to pay Sides for days when he wasn’t actively searching for work.
     A three-judge panel concluded on June 23, however, that Tharp’s case presented “unique evidentiary difficulties” and that there was “substantial evidence” in the record to support the NLRB’s award.
     The ruling supports the precedent that hearsay evidence is acceptable in NLRB administrative hearings when it is the best evidence available to support an illegally discharged employee’s claims.
     It “was not improper” to allow hearsay testimony from Tharp’s mother because “it was the best evidence available” given that Tharp himself was dead, Judge Leonard Garth wrote for the court.
     During the long series of appeals and remands in the case, the NLRB shifted part of the burden of production. Rather than requiring employers to show that illegally discharged employees had not sought suitable employment after their discharge, the NLRB said the employees should prove that they had looked for work that an employer could show was available.
     This put the general counsel of the NLRB representing Tharp in an “especially untenable position” because the general counsel had no reason to retain evidence of Tharp’s job search, according to the ruling.
     The court therefore agreed with the administrative law judge’s ruling that it would not “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.”
     As for Sides, Garth wrote that “St. George improperly asks this court to view certain periods of inactivity in a vacuum rather than scrutinize Sides’s efforts holistically.”
     “The demand for reasonable due diligence [in looking for a job] does not necessarily oblige a discriminatee to undertake a daily search for employment,” Garth wrote.
     Sides’ registration with two government agencies, his frequent searches for job openings through friends and newspaper listings, his submission of applications to 33 employers, and his procurement of two temporary positions, demonstrate Sides’ “‘honest good faith effort’ . . . consistent with the inclination to work and to be self-supporting,” which satisfies us as reasonable diligence,” Garth wrote, citing Kawasaki Motors Mfg Corp v. NLRB.

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