California Gas Transport, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 2010

355 N.L.R.B. 465 (N.L.R.B. 2010)

CALIFORNIA GAS TRANSPORT
355 NLRB No. 73
465
California Gas Transport, Inc. and General Team-
sters (Excluding Mailers), State of Arizona, Lo-
cal 104, an affiliate of the International Broth-
erhood of Teamsters. Cases 28–CA–19645, 28–
CA–19666, 28–CA–20014, 28–CA–20082, and
28–CA–20177
August 10, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On April 23, 2009, Administrative Law Judge John J.
McCarrick issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions as

1 We reject the Respondent’s contention that the judge precluded it
from making an offer of proof regarding expected testimony from its
expert witness, a certified public accountant. In fact, the Respondent
made its offer. The Respondent’s attorney clearly explained on the
record that the witness would have testified that, in his opinion, because
the Board relies on gross wages to assess an employer’s initial backpay
liability, the interim earnings of self-employed discriminatees likewise
should be measured by their gross revenue rather than their net revenue,
the Board’s traditional measure. The Respondent did not make a fur-
ther request to submit a more detailed written offer of proof. See, e.g.,
St. George Warehouse, 348 NLRB 1037, 1038 (2006).
We also disagree with the Respondent’s contention that the judge
erred by refusing to hear the testimony. Whether to permit expert tes-
timony is a question that is committed to the discretion of the trial
judge. We do not believe the judge abused his discretion here. “It is
well established that only net earnings from self-employment are con-
sidered to be interim earnings deductible from gross backpay.” Re-
gional Import & Export Trucking Co., 318 NLRB 816, 818 (1995).
The use of gross wages in the backpay calculation reflects the fact that
in the employment relationship most costs of doing business are borne
by the employer. The use of net earnings for purposes of mitigation in
the case of a self-employed discriminatee, by contrast, reflects the fact
that the self-employed bear their own costs of doing business. Thus, in
most instances, gross wages minus net earnings accurately reflects what
a discriminatee lost as a result of the violation of the Act. Contrary to
the Respondent’s contention, the witness was not offered to testify
about the validity of one of the discriminatee’s specific tax deductions.
As the Respondent’s attorney explained on the record, the witness “was
going to speak to the issue of the methodology that was used here.”
Even if the witness might have referred to individual tax deductions, it
is apparent that he would have done so only in the context of contesting
that methodology. In any event, the Respondent’s exceptions brief
actually contests that methodology based on the essential point of its
expert’s proffered testimony, including a calculation of the difference
in backpay using the Respondent’s suggested approach. Likewise, its
brief includes an argument over an employee’s, Ramon Hernandez,
specific tax deductions. In these circumstances, we find that the judge
did not abuse his discretion by declining to hear the testimony of the
modified and to adopt the recommended supplemental
Order as modified3 and set forth in full below.

expert witness and, that, in any case, the Respondent was not preju-
diced by the judge’s ruling. Finally, as to employee Hernandez, we
acknowledge that there may be some doubt about the correctness of his
2005 tax return but, unlike our colleague, we shall not rely on that
uncertainty to reduce Hernandez’ backpay. See Midwestern Personnel
Services, 346 NLRB 624, 625 (2006), enfd. 508 F.3d 418 (7th Cir.
2007) (“Doubts, uncertainties, or ambiguities are resolved against the
wrongdoing respondent.”).
Contrary to his colleagues, Member Schaumber finds that the judge
abused his discretion in denying the Respondent the opportunity to
adduce expert testimony. First, he disagrees that the Respondent’s
proffer was as constrained as his colleagues imply; the Respondent’s
counsel specifically stated that the expert would offer testimony as to
“what we submit is some very aggressive deduction taking,” which on
several tax returns reduced the discriminatees’ income from over
$100,000 down to $10,000 to $12,000. That proffer was specific
enough to encompass testimony as to deductions claimed by individual
discriminatees, the validity of which the expert clearly could have
challenged. Moreover, to the extent the Respondent sought to estab-
lish, through expert testimony, that the Board’s extant methodology to
backpay calculations is flawed, there is nothing improper or inappropri-
ate about that. Indeed, my colleagues recently have sua sponte solicited
amicus briefs seeking input from interested parties and experts as to
whether the Board should alter its well-established method of comput-
ing interest on backpay. (Press release titled: “NLRB invites amicus
briefs in pending cases—At issue: Electronic posting of notices, and
compound interest;” May 14, 2010.) Precluding the Respondent a
similar opportunity to present its case to the Board seems manifestly
unjust. That is not to say that the judge could not have limited the
expert’s testimony if it excessively delayed the hearing; however, to
preclude it altogether was unwarranted overkill. Even in the absence of
expert testimony, however, I would reduce the backpay of discrimina-
tee Ramon Hernandez. His 2005 Federal income tax return claimed a
$10,500 schedule C business deduction, yet reflected absolutely no
schedule C business income. Not surprisingly, Hernandez was unable
to offer any explanation for the deduction, which I would disallow as
an offset to his gross income.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent also contends that the judge’s rulings, findings, and
conclusions demonstrate bias and prejudice. On careful review of the
judge’s decision and the entire record, we are satisfied that the Respon-
dent’s contention lacks merit.
3 The judge calculated discriminatee Efren Munoz’ backpay to be
$10,769.32. The General Counsel and the Respondent agree that figure
is incorrect, and that the correct amount of backpay due Munoz is
$3,164.88. We shall modify the judge’s order accordingly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

466
ORDER
The National Labor Relations Board orders that the
Respondent, California Gas Transport, Inc., El Paso,
Texas, its officers, agents, successors, and assigns, shall
pay each of the following persons backpay in the amount
shown opposite their name, plus interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987),
minus tax withholdings required by Federal and State
laws:

Jose Raul Almaraz $ 6,026.54
Raul Almaraz 6,446.76
Alonso Alonso 38,282.24
Rogelio Delgadillo 1,070.00
Rosario Gastelum 23,679.95
Jacinto Hernandez 21,546.56
Ramon Hernandez 26,288.94
Lorenzo Medina 13,454.08
Efren Munoz 3,164.88
Gonzalo Munoz 52,582.77
Robert Ryburn 12,565.64
TOTAL NET BACKPAY $205,108.36

Mara-Louise Anzalone, Esq., for the General Counsel.
Thomas J. Kennedy, Esq. and Michael C. Grubbs, Esq.
(Sherman & Howard), of Phoenix, Arizona, for the Re-
spondent.
Kathy Tiihonen, Organizer, of Phoenix, Arizona, for the Charg-
ing Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. On August
31, 2006, the Board issued its Decision and Order1 directing,
inter alia, that Respondent make whole Rogelio Delgadillo,
Robert Ryburn, Gonzalo Munoz, Efren Munoz, Alonso Alonso,
Ramon Hernandez, Lorenzo Medina, Raul Almaraz, Jose Raul
Almaraz, Rosario Gastelum, and Jacinto Hernandez for any
loss of earnings or other benefits suffered as a result of the
discrimination against them. Thereafter on November 7, 2007,
the United States Court of Appeals for the Fifth Circuit issued
its Judgment2 enforcing the Board’s Decision and Order. This
case was tried before me in El Paso, Texas, on February 10–11,
2009, upon the amended compliance specification3 issued by

1 California Gas Transport, Inc., 347 NLRB 1314 (2006)
2 Fifth Circuit No. 06-60871, Unpublished Memorandum filed No-
vember 7, 2007.
3 At the hearing counsel for the General Counsel moved to amend
the amended compliance specification by offering revised App. A, pp.
2, 3, 4, 5, 6, 7, and 8, GC Exhs. 3 and 7, and backpay calculation sum-
mary sheet, GC Exh. 2, which reflect adjustments to interim earnings
for Alonso Alonso, Jacinto Hernandez, Lorenzo Medina, Raul Almeraz,
Rosario Gastelum, Ramon. The motion to amend was granted. After
the close of the hearing, in her brief, counsel for the General Counsel
the Regional Director for Region 28 of the National Labor Re-
lations Board (the Board) on December 5, 2008. On December
24, 2008, Respondent filed its answer to the amended compli-
ance specification and denied that the gross backpay calcula-
tions due any of the discriminatees are correct. Having been
unable to reach an agreement with the General Counsel con-
cerning the amount of backpay due to the above-named dis-
criminatees, Respondent, the Charging Party, and the counsel
for the General Counsel entered into a stipulation on February
10, 2009, that provided the parties agreed that the gross back-
pay for each discriminate set forth in the amended compliance
specification was the amount of gross backpay due to the dis-
criminatees. The parties further stipulated that the correct
amount of net earnings for Rogelio Delgadillo was $1070 and
for Raul Almaraz was $6446.76.4
The principal issue presented for decision is the correct
amount of interim earnings to be offset against gross backpay
owed to the discriminates Jacinto Hernandez, Lorenzo Medina,
Jose Gonzalo Munoz, Jose Raul Almeraz, Robert Ryburn,
Efren Munoz, Alonso Alonso, Ramon Hernandez, and Rosario
Gastelum. In its brief, while Respondent appears to contend
that the amount of interim earnings contained in the amended
compliance specification for each of the above discriminatees is
incorrect, in it makes no argument with respect to Robert Ry-
burn or Efren Munoz.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
Findings and Conclusions
Nine drivers gave testimony concerning their search for
work following their September 13, 2004 terminations.
Jacinto Hernandez
After his discharge from his part-time5 job with Respondent,
Jacinto Hernandez began to contact his friends who were driv-
ers to look for work and submitted applications to several em-
ployers as a driver. Hernandez lives in an impoverished area of
El Paso, Texas, that has neither public transportation nor a
phone. His termination left him unable to afford his car. Her-
nandez, who is over 65 years of age, receives social security

moved to amend the compliance specification to reflect more accurate
net backpay figures for Gastelum. The motion to amend is granted.
4 On March 18, 2009, after the hearing, counsel for the General
Counsel filed a Motion to Correct the Record. On March 24, 2009,
Respondent filed its Response to General Counsel’s Motion to Correct
the Record. Finally on March 27, 2009, the parties filed a Joint Motion
to Correct the Record. In the joint motion, the parties agree that the
testimony that begins on p. 116 of the transcript is that of Ramon Her-
nandez and the testimony on p. 24 is that of Jacinto Hernandez. The
parties further agree that the parties stipulated at the hearing as to the
net backpay of Raul Almeraz and that it was Jose Raul Almeraz who
testified at the hearing. The transcript will be corrected as reflected in
the parties joint motion.
5 GC Exh. 1(j), appendix A reflects that while employed by Respon-
dent, Hernandez worked 82 percent of the hours of other truckdrivers.
CALIFORNIA GAS TRANSPORT 467
benefits of $460 per month. It appears that in October 2004,
Hernandez first obtained part-time work with Texas LPG haul-
ing gas. Texas LPG told Hernandez that the work would be-
come full time but despite having filled out applications with
other employers, he was offered nothing but part-time work
until July 2005.
Lorenzo Medina
The day after he was fired, Medina began his job search at
several trucking companies and filled out applications. He
called and followed up on his applications on a daily basis
thereafter until he was hired in December 2004 by MTI as a
full-time concrete truckdriver. Medina worked for MTI for 2
months until he got a better paying job with MTS on Janu-
ary 30, 2005. Medina continues with MTS to the present.
Jose Gonzalo Munoz
Munoz applied for work within 2 weeks after he was termi-
nated. Munoz was hired by MTS about 6 weeks after he was
fired and worked for MTS full time for about 6 to 8 months.
Thereafter, in about April 2005, Munoz bought his own truck
and became self-employed to the present.
Jose Almeraz
Immediately after his termination, Almeraz made application
as a driver with at least eight trucking companies over a 10-day
period. Three weeks later Southwest Freight Lines offered
Almeraz a full-time job as a driver. Almeraz was with South-
west Freight until 2006 until it closed when he got a job with
Texas LPG in April 2006.
Robert Ryburn
A few days after his September 24, 2005 termination, Ry-
burn called Texas LGP about a job. A week later Ryburn
called Coastal and filled out an application. Ryburn was denied
work at Coastal due to a bad reference from Respondent which
was found by the Board herein to have violated Section 8(a)(1)
of the National Labor Relations Act (the Act). Three weeks
later Manuel Huerta Trucking hired Ryburn in November 2004.
Ryburn worked for Huerta until January 2005 and went to work
for BJ Cecil for a year. Ryburn then was hired by Asarco Min-
ing in April 2006 and Khalil Bottling, part time in May 2006.
Ryburn lived in Nogales, Arizona, at the time of his termina-
tion. Nogales is 380 miles from El Paso.
Efren Munoz
Three or 4 days after he was fired Munoz applied at Jobe as a
driver. On October 20, 2004, Munoz was hired by MTS as a
full-time driver and has been employed there to date.
Alonso Alonso
As soon as he was fired Alonso began looking for work and
filled out applications with at least six trucking companies.
After about a month, Alonso was hired as a full-time driver by
Robert Barassa who leased his trucks to UPT. Later in 2005,
Alonso became an owner-operator and leased his truck to UPT.
Ramon Hernandez
One week after his termination, Hernandez applied for work
at several other trucking companies, including UPT. One
month after his termination, UPT hired Hernandez as a full-
time driver. After 6 months with UPT, Hernandez was fired in
April 2005 to an accident on the job and Hernandez was off
work for 3 months due to an injury in this accident for which he
received worker’s compensation. In about August 2005, Her-
nandez became an owner-operator until May 2006. About 2
weeks later, Hernandez began searching for work as a driver
and was not hired after a few months.
Rosario Gastelum
Gastelum applied for work with several trucking companies
7 to 10 days after his termination. Between September and
December 2004, Gastelum applied for work at least once a
week. Gastelum was initially hired as a full-time driver in
January 2005 by Far West. Gastelum was employed by Far
West for 5 to 6 months and with two other companies as a full-
time driver in 2005. From 2006 to the present, Gastelum has
been with five or six other trucking companies and was forced
to seek new employment because the companies went out of
business. Gastelum, who resides in Mexico, was extremely
difficult for the Region to communicate with and had, there-
fore, not provided his tax returns at the time the compliance
specification issued. For this reason, the compliance specifica-
tion included interim earnings for Gastelum that were based on
an average of the remaining drivers’ interim earnings. Gaste-
lum appeared at hearing, however, and was able to procure his
tax records from the Internal Revenue Service office on the
same day. These records are contained in Respondent’s Exhibit
9. Based on these records, the Region has been able to deter-
mine a more accurate net backpay figure for Gastelum, which is
set forth below:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

468
Year Qtr. Gross Backpay
Interim
Earnings
Interim
Expenses
Net Interim
Earnings Net Backpay
Medical/
Other

2004 3rd 1,363.41 1,215.56 0.00 1,215.56 147.86 0.00
2004 4th 9,879.59 6,506.81 0.00 6,506.81 3,372.78 0.00
2005 1st 9,663.00 6,729.24 0.00 6,729.24 2,933.76 0.00
2005 2nd 9,663.00 6,804.85 0.00 6,804.85 2,858.15 0.00
2005 3rd 9,663.00 6,880.46 0.00 6,880.46 2,782.54 0.00
2005 4th 9,663.00 6,880.46 0.00 6,880.46 2,782.54 0.00
2006 1st 8,934.60 4,595.34 0.00 4,595.34 4,339.26 0.00
2006 2nd 8,934.60 4,646.97 0.00 4,646.97 4,287.63 0.00
2006 3rd 1,363.00 1,187.56 0.00 1,187.56 175.44 0.00

Totals: 69,127.18 45,447.23 23,679.95 0.00
Respondent’s Challenge of Interim Earnings
As part of its challenge to nine of the employees’ interim
earnings, Respondent offered the testimony of Kathy Mundy
(Mundy), a vocational expert with a Masters Degree in Vo-
cational Rehabilitation Counseling. Most of Mundy’s expert
testimony has been given before the Social Security Admini-
stration and in Worker’s Compensation hearings where she is
called upon to estimate the total number of jobs that may
exist in a particular region to determine if an individual
meets the definition of disabled. She admitted that none of
her research involved the Nogales, Arizona area where dis-
criminatee Ryburn lives. Mundy found that there were sig-
nificant truckdriver positions during 2004–2006 in the El
Paso, Texas area and that a driver should have been able to
find employment within 2 weeks. In reaching her conclu-
sions, Mundy considered the classified ads in the English
language El Paso, Texas daily newspaper she sampled once a
month from September 2004 to August 2006, the Bureau of
Labor Statistics publication for truck driving positions in the
El Paso area, the 8-percent unemployment figure for 2004–
2006 in El Paso, Texas, her discussions with an unnamed
sales manager from one trucking company and information
from unspecified persons familiar with the over-the-road
trucking business. According to Mundy, any of the discrimi-
natees should have been able to find a job within 2 weeks of
commencing a job search. Mundy did not consider the dis-
criminatees’ work history, qualifications, or licenses.
Respondent also proffered the testimony of CPA Keven
Jensen for the purportedly for purpose of explaining that the
Board’s formula for determining net backpay for the self-
employed discriminatees was inappropriate. Respondent
argues that the Board used gross income to determine gross
backpay and therefore should have used gross income, i.e.,
gross receipts without expenses, to determine interim earn-
ings, for the self-employed discriminatees. Jensen’s testi-
mony would have established that gross interim earnings
should have been compared to gross backpay. Contrary to
Respondent’s
assertion in its posthearing brief, as set forth in Respondent’s
offer of proof, Jensen was never offered as a witness for the
purpose of explaining income tax deductions the discrimina-
tees may have taken or to explain Internal Revenue Code
sections. I rejected this testimony on the ground that the
Board has long held that an appropriate measure of interim
earnings for the self-employed is their net earnings, i.e., prof-
its. Basin Frozen Foods, Inc., 320 NLRB 1072, 1075
(1996); Cliffstar Transportation Co., 311 NLRB 152, 169
(1993); Brown Co., 305 NLRB 62 (1991); and F. E. Hazard,
LTD., 297 NLRB 790 (1990). Jensen’s testimony was not
competent on this issue. Respondent was not precluded from
questioning the accuracy of income tax returns of the self-
employed discriminatees nor of offering Jensen’s testimony
as a CPA concerning the accuracy of the tax returns.
Analysis
Applicable Legal Principals
It is well settled that the finding of an unfair labor practice
is presumptive proof that some backpay is owed, NLRB v.
Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965),
cert. denied 384 U.S. 972 (1966), and that in a backpay pro-
ceeding the sole burden on the General Counsel is to show
the gross amounts of backpay due—the amount the employ-
ees would have received but for the employer’s illegal con-
duct. (Virginia Electric & Power Co. v. NLRB, 319 U.S. 533,
544 (1943). Once that has been established, “the burden is
upon the employer to establish facts which would . . . miti-
gate that liability.” NLRB v. Brown & Root, Inc., 311 F.2d
447, 454 (8th Cir. 1963). It is further well established that
any formula which approximates what discriminatees would
have earned had they not been discriminated against is ac-
ceptable if it is not unreasonable or arbitrary in the circum-
stances. Iron Workers Local 378 (Judson Steel Corp.), 227
NLRB 692 (1977); NLRB v. Brown & Root, Inc., supra at
452; East Texas Steel & Castings Co., 116 NLRB 1336
(1956); Avon Convalescent Hospital, 219 NLRB 1210, 1213
(1975).
CALIFORNIA GAS TRANSPORT 469
The Board has long recognized the value of utilizing so-
cial security records and income tax returns in determining
interim income, and has found that “poor record keeping,
uncertainty as to memory, and perhaps exaggeration” do not
automatically disqualify an employee from receiving back-
pay. Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966).
Interim Earnings—Failure to Mitigate
In addition to Respondent’s rejected argument that the
Board used an inappropriate formula for determining interim
earnings for self-employed discriminatees, Respondent con-
tends that the discriminatees failed to mitigate their losses by
failing to make a reasonable search for work, by voluntarily
leaving work for lower paying jobs, and by making them-
selves unavailable for work.
Recently, in St. George Warehouse, 351 NLRB 961
(2007), a sharply divided Board majority reversed over 40
years of Board precedent dealing with the burden of proof
with respect to mitigation of losses by discriminatees in
backpay cases. Ignoring the availability of subpoenas to
Respondent’s who wish to challenge the amount of interim
earnings reported in the General Counsel’s backpay specifi-
cation, the Board took the novel approach of requiring Gen-
eral Counsel to produce witnesses or documents to establish
the search efforts of unlawfully terminated employees if
Respondent can show that there were substantially equivalent
jobs available in the relevant geographical area.
In apparent conflict with Essex Valley Visiting Nurses
Assn., 352 NLRB 427, 438 (2008), where the Board held that
classified ads and expert testimony, “is not sufficient to
prove either that positions were available or that the nurses
would have been successful in obtaining one” and its own
recent conclusion in Grosvenor Resort, 350 NLRB 1197
(2007), that vocational expert testimony, “is too speculative
to meet the Respondent’s burden of establishing that the
backpay of certain discriminatees should be reduced,” under
the St. George Warehouse standard, Respondent now can
satisfy its burden to show that there are substantially equiva-
lent jobs available in the relevant geographical area by call-
ing a vocational expert as a witness to testify that there are a
number of comparable jobs in the geographical area based on
BLS statistics and classified ads. However, there is no re-
quirement that the vocational expert interview the discrimi-
natees to determine if the generic jobs are available for the
discriminatee or if they would have likely been hired for
specific jobs, contrary to established Board precedent. E & L
Plastics Corp., 314 NLRB 1056, 1058 (1994); Delta Data
Systems Corp., 293 NLRB 736, 737 (1989).
As in St. George Warehouse, supra, here, Respondent has
offered a vocational expert who testified that in the El Paso,
Texas region there were significant numbers of truck driving
jobs and that a driver should have found a job within 2
weeks. Contrary to counsel for the General Counsel’s argu-
ment that Respondent’s vocational expert should not be cred-
ited given the speculative nature of her testimony, the ab-
sence of any testimony that the jobs she cited were available
or that the discriminatees would have qualified for any of
those jobs and notwithstanding the Board’s holdings in Essex
Valley Visiting Nurses Assn, supra, and Grosvenor Resort,
supra, given the Board’s holding in St. George Warehouse,
supra, I am constrained to find that Respondent has satisfied
its burden of showing that there were significant jobs in the
El Paso, Texas area and that the burden has shifted to Gen-
eral Counsel to show that each of the discriminates who lived
in the El Paso area made a reasonable job search.6
Further, in Grosvenor Resort, 350 NLRB 1197 (2007), the
Board concluded that a discriminatee must commence his
search for interim employment within 14 days of his unlaw-
ful termination or face a tolling of backpay.
Concerning the voluntary quitting of interim employment,
the Board holds that when a discriminatee voluntarily quits
interim employment, the burden shifts from the Respondent
to the Government to show that the decision to quit was rea-
sonable. Cable Car Advertisers, 336 NLRB 927, 931 (2001).
Further a termination from employment does not constitute
willful loss of employment. There must be evidence of delib-
erate or gross misconduct by the discriminatee. Ryder Sys-
tem, 302 NLRB 608, 610 (1991). It is also clear that being
unable for work due to workers compensation injuries tolls
backpay during the period of disability. City Disposal Sys-
tems, 290 NLRB 413 fn. 2 (1988). It is likewise the law that
an employee who for interim employment undertakes self
employment does not result in the equivalent of a willful loss
of earnings, but self-employment is to be treated as other
interim employment. Cliffstar Transportation Co., 311
NLRB 152, 169 (1993); Heinrich Motors, 166 NLRB 783
(1967).
I turn now to Respondent’s individual contentions with re-
spect to why backpay should be reduced for its employees.
Jacinto Hernandez
Respondent argues that Hernandez failed to make a rea-
sonable search for full-time employment. When employed
by Respondent, Hernandez worked about 82 percent of the
hours of other discriminatees. The record reflects that Hern-
dandez termination caused him to lose his car and that he
walked a 1-1/2 miles to and from his interim employment
despite the fact that Hernandez is over 65 years old and re-
ceives social security benefits.
Under these circumstances, I find that Hernandez engaged
in a reasonable job search immediately after his unlawful
termination and secured employment in October 2004 that
was substantially equivalent to his work with Respondent
given the fact that he worked part time for Respondent, given
the limitations placed on his job search as a result of losing
his car due to his termination, together with his age and the
fact that he received social security payments. Cassis Man-
agement Co., 336 NLRB 961, 968 (2001). I find that Her-
nandez began his job search immediately after his termina-
tion by Respondent and that his termination was the proxi-
mate cause of his loss of transportation, mitigating the fact
that he did not find full-time employment until May 2005

6 Respondent has failed to meet its burden of showing that there
were significant numbers of jobs in the Nogales, Arizona area where
discriminatee Ryburn lived.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

470
and mitigating and truncating his job search after his termi-
nation. Grosvenor Resort, supra.
Lorenzo Medina
Respondent contends that Medina did not engage in a rea-
sonable job search and made no applications for interim em-
ployment until November 2004. Contrary to Respondent’s
assertion, Medina began to search for work the day after he
was fired, satisfying the 2-week requirement of Grosvenor
Resort, supra. Moreover, Medina made daily calls to em-
ployers searching for work until he was hired in December
2004, satisfying the St. George Warehouse, supra, require-
ment.
Jose Gonzalo Munoz
Respondent contends that Munoz did not make a reason-
able job search, that he voluntarily quit interim employment
to seek self-employment and that his interim earnings should
be reduced as a result of his failure to promptly seek work
and by voluntarily quitting his employment.
Again contrary to Respondent’s assertion, Munoz began
his job search immediately after he was fired. About 2
weeks after his termination, MTS offered him a job and he
began to submit the necessary paperwork. It took about 6
weeks for MTS to put Munoz to work. Since MTS offered
him a job, Munoz stopped looking for other work. Unlike
the facts in Grosvenor Resort, supra, here, Munoz was of-
fered a job within 2 weeks of his termination, excusing any
further job search efforts.
It is likewise the law that an employee who for interim
employment undertakes self employment does not result in
the equivalent of a willful loss of earnings, but self-
employment is to be treated as other interim employment.
Cliffstar Transportation Co., 311 NLRB at 169; Heinrich
Motors, 166 NLRB 783 (1967). Thus, unlike the situation in
Cable Car Advertisers, 336 NLRB 927, 931 (2001), Munoz’
seeking self-employment is not the equivalent of voluntarily
quitting, which would trigger the General Counsel’s obliga-
tion to show that the quit was reasonable.
Respondent’s argument that the appropriate measure of in-
terim earnings for a self-employed person should be gross
income is of no avail as discussed above. Profits, i.e., gross
revenue minus expenses, are the correct measure of interim
earnings for the self-employed. Cliffstar Transportation Co.,
supra.
Jose Almeraz
Respondent contends that Almeraz’ had greater interim
earnings than gross backpay and that he should not be cred-
ited7 with having made a reasonable job search. I find that

7 Respondent contends that Almeraz was less than truthful con-
cerning payments he received from interim employment with Texas
LPG. Almeraz testified truthfully that he received a salary from
Texas LPG but denied receiving cash per diem until shown a docu-
ment to refresh his recollection. At that time Almeraz admitted
receiving $45 per day for expenses when entering Mexico. I am not
convinced that Almeraz was untruthful when asked about “per diem”
rather than simply not understanding that he was being asked about
receiving payment for his expenses.
Almeraz made a reasonable job search within days of his
termination by searching out and making application with at
least eight employers over a 10-day period and securing em-
ployment in 3 weeks. The burden remains with Respondent
to show that Almeraz failed to mitigate his loss of earning
and I find that Respondent has failed to show any evidence
that the calculations offered by the General Counsel in the
amended backpay specification are not correct with respect
to Almeraz’ quarterly calculations of interim employment.
Robert Ryburn
Respondent makes no argument in its brief concerning
Ryburn. I find that Respondent has failed to satisfy its bur-
den of showing that there were substantially equivalent jobs
in the Nogales, Arizona area. Thus, the burden does not shift
to the General Counsel to establish that Ryburn made a
good-faith effort to find work. Respondent has failed to offer
proof that the interim earnings set forth in the amended
backpay specification are incorrect.
Efren Munoz
Respondent makes no argument in its brief concerning
Efren Munoz. While Respondent has satisfied its burden of
showing that there were substantially equivalent jobs in the
El Paso, Texas area, the General Counsel has established that
3 or 4 days after he was fired Munoz applied for work at
Jobe as a driver and at MTS. On October 20, 2004, Munoz
was hired by MTS as a full-time driver and has been em-
ployed there to date. I find that Munoz made a good-faith
effort to find work. Respondent has failed to offer proof that
the interim earnings set forth in the amended backpay speci-
fication are incorrect.
Alonso Alonso
Respondent takes the position that since Alonso sought in-
terim employment as a self-employed driver rather than con-
tinue as an employee of Robert Barassa, this constitutes a
failure to mitigate lost earnings. There is no dispute that
Alonso made a good-faith search for employment immedi-
ately after his termination and secured employment with
Barassa. Later, Alonso became an owner operator, leasing
his truck to UPT in 2005.
As with Jose Munoz, Alonso did not voluntarily quit his
employment but sought out self-employment. An employee
who undertakes self-employment does not result in the
equivalent of a willful loss of earnings, but such self-
employment is to be treated as other interim employment.
Cliffstar Transportation Co., 311 NLRB at 169; Heinrich
Motors, supra. Thus, unlike the situation in Cable Car Ad-
vertisers, 336 NLRB at 931, seeking self-employment is not
the equivalent of voluntarily quitting, which would trigger
the General Counsel’s obligation to show that the quit was
reasonable.
Further, Respondent’s argument that only gross receipts
from self-employment should be considered for interim earn-
ings is rejected. Cliffstar Transportation Co., supra.
Ramon Hernandez
Respondent argues that Hernandez’ backpay should be re-
duced since he was terminated from his employer UPT in
CALIFORNIA GAS TRANSPORT 471
April 2005 for a work-related truck accident that constitutes
willful or gross misconduct, that his backpay should be tolled
while he received worker’s comp benefits for 3 to 4 months
and that Hernandez made an improper deduction from his
Federal Income Tax return for 2005 increasing his income by
$10,500.
There is no evidence concerning the circumstances of the
truck accident in April 2005 that led to Hernandez’ termina-
tion from UPT. Respondent must show that a termination
from employment was for deliberate or gross misconduct by
the discriminatee. Ryder System, 302 NLRB 608, 610
(1991). Respondent has failed to show that the accident for
which Hernandez was terminated was the result of deliberate
or gross misconduct. Thus, Hernandez’ backpay will not be
tolled following his termination in April 2005. However, the
Board has held that being unable to work due to worker’s
compensation injuries tolls backpay during the period of
disability. City Disposal Systems, 290 NLRB 413 fn. 2
(1988). Thus, for the period from April 1 to July 1, 2005,
the second quarter of 2005, backpay will be tolled.
As to the alleged improper deduction in 2005, Hernandez
2005 Federal Income Tax return8 reflects income of $15,499.
The schedule C form reflects no income but $10,500 in busi-
ness expenses for Hernandez’ trucking company for fuel
costs. The schedule F form shows income of $17,841 for
Hernandez’ trucking company which is also shown on the
1040 form at line 17. I find nothing improper about the de-
duction for expenses claimed by Hernandez.
Rosario Gastelum
Respondent claims that Gastelum did not make a proper
job search and that he voluntarily quit interim employment,
however, the record reflects that Gastelum applied for work
with several trucking companies 7 to 10 days after his termi-
nation and between September and December 2004, Gaste-
lum applied for work at least once a week. Gastelum was
initially hired as a full-time driver in January 2005 by Far
West. This constitutes a good-faith effort to mitigate dam-
ages under Grosvenor Resort, supra.

8 R. Exh. 8.
Gastelum quit his first job after a few months and imme-
diately secured another job with better pay. There is no evi-
dence that Gastelum was out of work more than a week or
two between jobs and the reason for working for so many
employers was because they went out of business rather than
because Gastelum voluntarily terminated his employment.
The General Counsel recalculated Gastelum’s interim
earnings based upon Federal Income Tax returns Gastelum
provided at the hearing. Respondent’s contention that all of
Gastelum’s 2006 earnings should be offset against gross
backpay for the first and second quarter and the partial third
quarter of 2006 is simply not supported by the law.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I issue the following recommended9
SUPPLEMENTAL ORDER
It is hereby ordered that Respondent, California Gas
Transport, Inc., El Paso, Texas, forthwith pay to each of the
following persons backpay in the amounts set opposite their
name, plus interest computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987), as
required by the Board’s Order of August 31, 2006:

Jose Raul Almaraz $ 6,026.54
Raul Almaraz 6,446.76
Alonso Alonso 38,282.24
Rogelio Delgadillo 1,070.00
Rosario Gastelum 23,679.95
Jacinto Hernandez 21,546.56
Ramon Hernandez 26,288.94
Lorenzo Medina 13,454.08
Efren Munoz 10,769.32
Gonzalo Munoz 52,582.77
Robert Ryburn 12,565.64

TOTAL NET BACKPAY $212,712.28

9 In the event no exceptions are filed as provided by Sec. 102.46
of the Board’s Rules and Regulations, the findings, conclusion, 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