First Transit, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 29, 2005

21-CA-032146 (N.L.R.B. Jul. 29, 2005)

JD(SF)-54-05
Pomona, Calif.

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BRANCH OFFICE
SAN FRANCISCO, CALIFORNIA

FIRST TRANSIT, INC.,
Successor with Liability to
RYDER/ATE, INC.

and

WHOLESALE DELIVERY DRIVERS,
SALESPERSONS, INDUSTRIAL AND ALLIED
WORKERS, LOCAL 848, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL–CIO
Cases 21–CA–32146
21–CA–32285

Lisa A. McNeill, Los Angeles, Calif., for the
General Counsel.
Douglas N. Silverstein, of Kesluk & Silverstein,
Los Angeles, Calif., and Daniel R. Beerck, Cincinnati, Ohio,
for Respondent.

SUPPLEMENTAL DECISION
Statement of the Case

JAMES M. KENNEDY, Administrative Law Judge: This compliance hearing was tried
in Los Angeles, California on eight hearing days beginning November 1, 2004. The underlying
Board Order (331 NLRB 889, Member Hurtgen concurring) was issued on July 31, 2000. That
order required Ryder/ATE, its successors and assigns, to offer to reinstate and to make whole
any employee who lost his or her job as a result of the Employer unilaterally changing its
attendance policy on April 24, 1997. Additionally, the United States Court of Appeals for the
District of Columbia Circuit issued its judgment on October 17, 2001 enforcing the Board’s
order. (No opinion per court rule. Docket No. 00-1407). During the litigation, First Transit, Inc.
succeeded to the Foothill Transit Authority bus system contract previously held by Ryder/ATE.
On September 8, 2000, First Transit, Inc. entered into a stipulation approved by the Regional
Director in which it admitted that it was a successor with liability to Ryder/ATE. Subsequently,
the Regional Director for Region 21 identified 37 employees whose employment was lost as a
result of the changed attendance policy. Thereafter, a dispute arose over the amount of
backpay allegedly owed these employees. As a result, the Regional Director for Region 21
issued a compliance specification on May 27, 2004. First Transit (Respondent) properly filed an
answer to the compliance specification on July 21, 2004. 1 After the hearing concluded, the
1 The Regional Director granted two extensions of time for filing the answer.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
2

General Counsel and Respondent filed briefs which have been carefully considered.

The issues, as presented, are relatively straightforward. For the most part, the gross
backpay has been calculated as being reasonably accurate and a stipulation governs the
backpay formulas which have been followed. The principal concerns raised by the answer and
the applicable stipulation are a variety of offsets. Most frequently, Respondent argues that the
claimant 2 voluntarily removed himself/herself from the job market, thereby failing to meet the
required duty of mitigating his or her damages. The alleged removals took various forms:
quitting acceptable interim employment without good cause, returning to school full-time, failing
to make an adequate search for interim employment and, in one case, deliberately choosing
underemployment. Respondent also argues that some of the employees were ineligible for
backpay in the first place because they were either probationers or they would have been
discharged under the previous attendance policy.

A second stipulation modifies the backpay specification for former drivers Lola Joyner,
Lonnell Horn, Juanita Madden, Natasha McQueen (Warren), Cindy O’Neal and Deborah Sleets.

In addition, there is a stipulation regarding missing and deceased claimants. It covers
seven former employees and requires Respondent to establish a set-aside of approximately
$643,000 while the parties jointly determine, on an administrative basis, whether the gross
backpay of the missing and deceased claimants may be subject to an offset. Those individuals
are José Avalos (deceased), Denny Benavides, Shawn Howell,3 Ike Johnson, Marcus Nelons,
Valerie Pedraza and Tyrice Turner. These individuals’ claims are deliberately omitted from this
decision.

Generally speaking, the rules of law to be applied are as follows: A finding by the Board
that an unfair labor practice was committed 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 it is the General Counsel’s burden to establish the reasonableness of the method
used to calculate gross backpay. Those are not issues here. In the next stage, the burden
shifts to the respondent to demonstrate that there are offsets to the gross figures, i.e.,
mitigation. The case usually cited for that proposition is NLRB v. Brown & Root, Inc., 311 F.2d
447, 454 (8th Cir. 1963). Therefore, this Respondent has the burden of establishing such
matters as availability of jobs, willful loss of earnings and interim earnings to be deducted from
the backpay award. NLRB v. Mooney Aircraft, Inc. 366 F.2d 809, 812-813 (5th Cir. 1966);
Neeley’s Car Clinic, 255 NLRB 1420 (1981). When there are uncertainties or ambiguities, doubt
should be resolved in favor of the wronged party rather than the wrongdoer. United Aircraft
Corp., 204 NLRB 1068 (1973) and cases cited therein. In evaluating the reasonableness of a
claimant's efforts to mitigate, the law does not require the highest standard of diligence, but only
that he or she make an "honest good faith effort to find suitable employment." NLRB v. Arduini
Mfg. Co., 395 F.2d 420, 422-423 (1st Cir. 1968). Furthermore, the backpay claimant’s efforts
during the entire backpay period, rather than in any particular quarter, must be considered to
2 I use the word ‘claimant’ here, rather than the traditional word ‘discriminatee’, because
none of the individuals were victims of purposeful discrimination as prohibited by the Act. All
are said to have lost their jobs due to absenteeism, but their transgressions were measured by
the unlawfully imposed attendance policy. ‘Claimant’ seems to be a more accurate description
of their status.
3 Howell was inadvertently omitted from the stipulation as signed on November 15, 2004. I
hereby add him to the stipulation based upon the General Counsel’s concession on
February 28, 2005 in response to a show cause order.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
3
determine whether the claimant was reasonable in his efforts. Black Magic Resources, 317
NLRB 721 (1995); Rainbow Coaches, 280 NLRB 166, 179-180 (1986). In addition, normally an
employee is not obligated to seek any employment that is offered, but employment in the field in
which he or she had been performing at the time of the discharge—that is, substantially
equivalent employment. Accordingly, a claimant is not required to accept a lower-paying job or
more onerous work absent compelling factors, such as an undue amount of time spent
searching unsuccessfully for a comparable position. Arlington Hotel Co., 287 NLRB 851, 854
(1987). Furthermore, a claimant does not fail to mitigate if he or she declines to move from one
location to another to try to find a job. Cf. Hacienda Hotel & Casino, 279 NLRB 601, 605-606
(1986); Iron Workers Local 15, 298 NLRB 445, 469 (1990).

The Background

In late 1996 Ryder/ATE took over the bus contract covering a portion of the Foothill
Transit Authority’s service area routes originating from Foothill’s Pomona yard. At the same
time it accepted the pre-existing collective bargaining contract between the predecessor,
Laidlaw Transit and Wholesale Delivery Drivers, Salespersons, Industrial and Allied Workers,
Local 848, International Brotherhood of Teamsters, AFL–CIO (the Union) covering the coach
drivers it employed. The contract’s term ended on March 31, 1997. In an attempt to remedy
some perceived severe absenteeism, Respondent, without bargaining with the Union on the
point, instituted a new attendance policy on April 24, 1997. The Board adopted Judge Mary
Miller Cracraft’s decision finding that the unilateral implementation of the new policy violated
§8(a)(5). It also found that application of the policy had resulted in the discharge of named
coach drivers Michelle Woods, Edwin Lear and Maria Velasquez as well as the discharge of
others then unknown. The ‘others’ have now been identified and are included in the compliance
specification. As part of their job, each coach driver was required to maintain a Class B drivers
license with a passenger endorsement. As would be expected, the backpay periods vary for
each driver since the unlawfully imposed attendance policy impacted each at different times.
Each driver was required to maintain a Class B drivers license with a passenger endorsement.
Some held Class A licenses with additional endorsements, such as air brakes, which permitted
the holder to drive even bigger vehicles than the motor coaches they operated for Foothill
Transit, such as tractor-trailers. Each employee will be discussed alphabetically.

Clide Aaron

Clide Aaron was hired in late October 1999 and was discharged under the absentee
policy on July 25, 2000. The specification asserts her backpay period runs from the date of her
discharge to January 23, 2002. Adjustments have already been made in the specification
covering periods where she was unable to work due to family circumstances (caring for her
daughter injured in auto accident and then caring for her husband after a heart attack). In
addition, the General Counsel’s brief concedes that Aaron’s testimony that she did not search
for work during the 4th quarter of 2001 and the 1st quarter of 2002 warrants elimination of the
claims for those two quarters. It has therefore reduced the claim as shown in Appendix C-1 from
$21,855.96 to $16,860.76. However, my calculation shows the accurate figure to be
$16,210.13. 4

4 The initial specification claimed $21,855.96 as net backpay. The 4th quarter of 2001 and
the 1st quarter of 2002, when combined, totals $5645.83. When that figure is subtracted from
the total claim of $21,855.96, the correct remainder is $16,210.13, not the $16,860.76 set forth
in the brief.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
4
Respondent agrees with the General Counsel that Aaron made an adequate search for
work immediately after her discharge during the 3rd quarter of 2000. The gross backpay for that
period is $3,218.87. Where Respondent and General Counsel diverge is the 4th quarter and
thereafter. Respondent asserts that Aaron did not accept a job which was offered her in
December.

In July 2000, after receiving truck driving training, Aaron sought positions with over-the-
road haulers. In December she returned to the driving school and learned of an open offer by
Swift Transportation. That company offered her a job for a minimum of 6 months, with a
possibility of it lasting 3 years. Had Aaron successfully accepted the position, her expected
annual income was advertised to be in the $35,000 range. She arranged with Swift to take an
over-the-road haul beginning on January 5, 2001 for her first 6-week run.

Unfortunately, Aaron’s 16-year-old daughter was severely injured in an auto accident on
December 17, 2000. As of the date of the hearing in 2004, the daughter still had not fully
recovered. The accident was followed by a second family emergency on January 9, 2001 when
Aaron’s husband suffered a heart attack. In August 2001, he suffered a second heart attack.
As a result of the daughter’s auto accident and her husband’s cardiac condition, Aaron never
took the Swift Transportation job. Indeed, she has not found any work since that offer. While
the General Counsel has adjusted the gross backpay for those periods, acknowledging that
Aaron was not seeking employment during those times, Respondent counters that, terrible as
the personal tragedies befalling Aaron and her family may have been, the reality for backpay
purposes is that she never actually took the only interim employment offered to her during the
slightly more than a year and a half of her backpay period.

A partial explanation for the dearth of employment offers stems from the fact that the
family moved from where they lived in Upland, first to Victorville where professional driving jobs
were scarce, and then to Barstow, where the situation was worse. Even so, Aaron went through
a state unemployment program known as GAIN which provided nominal income conditioned on
her taking some job acquisition training. In addition, Aaron testified that in 2001 she submitted
job applications at several bus and charter lines, including Victor Valley Transit, Wal-Mart and
Stater Brothers supermarkets.

For this proposition, Respondent has essentially combined two arguments, one of which
has been partially accepted by the General Counsel. The combination is the familiar duty to
mitigate as set forth above and the second is the so-called ‘hazards of living’ rule set forth in
American Manufacturing Co. of Texas, 167 NLRB 520, 522 (1967). Indeed, the specification as
drafted took those circumstances into account.

However, I am unable to accept Respondent’s argument that the backpay for Aaron
should end when she turned down the over-the-road Swift Transportation job. Although it did
involve driving, and she was qualified for it by virtue of the appropriate licensing, I do not deem it
to have been equivalent employment. Her first run with Swift would have required her to be
away from her home in Upland for 6 weeks. This was not a day job as her motor coach driving
for Ryder/ATE had been. It not only required long-haul driving, it no doubt would have included
loading and unloading the freight, a normal responsibility for such a driver. As a coach driver,
she had had no freight to unload. Furthermore, the pay was quite different. Swift was to pay
her by the mile; as a coach driver, she had been hourly and could count on a regular, periodic
paycheck. Swift never even told her how the pay would be calculated. There was nothing
regular or periodic about it. Therefore, I conclude that Aaron’s choosing (albeit due to family
circumstances) to decline the Swift job was entirely reasonable, as it was not equivalent work.
She could have turned it down even absent the emergencies which befell her and her family.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
5

Respondent has not challenged Aaron’s efforts to obtain interim employment during the
remainder of the backpay period. In any event, taken as a whole, her efforts were reasonable.
For those time frames where she was unable to participate in the job market, appropriate
adjustments have already been made.

Clide Aaron is entitled to the net backpay of $16,210.13.

Patrice Benemie

Patrice Benemie’s backpay specification has been modified. The corrected specification
is G.C.Exh. 10, a modified Appendix C-4. Benemie was a coach driver hired in December 1996
and discharged July 15, 1997. Her backpay period is July 16, 1997 to January 23, 2002. Her
interim earnings from the date of her discharge until the 1st quarter of 1999 are quite small and
therefore her net backpay for those periods is not significantly offset. She continued to maintain
her Class B drivers license with passenger endorsement.

Nevertheless, it appears that within 3 weeks of her discharge she applied for bus driving
jobs at Omni Transit (in Riverside), Laidlaw School Bus and even tried to get her job back at
Ryder/ATE. Although her testimony is somewhat disjointed, it also appears that she applied for
a school bus job with the Chaffey [Joint Union High] School District in Ontario/Chino. That job
eventually came to fruition in October 1999, though it appears she had to apply again in August
of that year. In the meantime, sometime in 1998 she obtained a job with Del Taco (a fast food
chain), eventually leaving in September of that year to get married. It was about a year later
that she began her employment with the Chaffey School District.

Respondent argues that it is entitled to an offset during those periods of unemployment
that are not clearly described by Benemie—particularly the year between the end of the Del
Taco job and the beginning of the Chaffey job. It specifically asserts that it was unable to obtain
any useful information because of Benemie’s “dizzying” testimony. And, to be sure, Benemie
was unclear on her job-seeking efforts. This is not particularly surprising, given the passage of
time. She recalled job applications, but was unable to place them in any particular time frame.
A number of more important things were no doubt her daily focus: marriage, death of a
premature infant, subsequent pregnancy and the like.

However, Respondent has the burden of proof to demonstrate that Benemie had willfully
avoided job opportunities. Here, I think it has failed to meet that burden and doubts on the issue
are to be resolved in favor of the claimant. United Aircraft Corp., 204 NLRB 1068 (1974).
Accordingly, Benemie is entitled to the full amount set forth in the modified Appendix C-4, the
sum of $33,300.77.

Frances Carmona (Lemos)

Ryder/ATE hired Frances Carmona in September 1997; she was discharged under the
unlawfully imposed attendance system on April 15, 1998. Her backpay period runs from April
16, 1998 until January 23, 2002. Although unrelated to any remedial issue under scrutiny here,
Respondent actually reinstated her on April 3, 2004.

Respondent’s argument concerning Carmona entails two incidents, each of which it
asserts requires termination or reduction of her backpay. However, Respondent’s brief does not
take issue with the net backpay until the 1st quarter of 2001, which correlates with the second
incident.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
6

The first incident involves Carmona’s discharge by her first interim employer, Laidlaw
Transit. Laidlaw also held a contract with the Foothill Transit authority, but over routes
originating from a yard in Montebello (as opposed to Ryder/ATE-First Transit which operated
out of Pomona). The second concerns her refusal to take a pay cut at Budget Rent-A-Car.
Carmona says she quit, but it appears that had she not done so, she would have been fired.

Insofar as both of these incidents are concerned, Respondent’s position is without merit.
Carmona’s testimony is replete with efforts to find and remain employed. Even the Laidlaw
employment demonstrates that. She was hired as a coach driver for Laidlaw, taking a pay cut
of more than a dollar, only 3 weeks after Ryder/ATE let her go. She worked for 4 months and
was forced to take 2 days off due to a medical emergency befalling her baby. Laidlaw was
unsympathetic and fired her claiming she had ‘abandoned her job’ even though she asked for
an assignment on the third day. The Board has held in Ryder Systems, 302 NLRB 608, 610
(1991) that an involuntary separation from an interim employer not constituting gross
misconduct is not a willful loss of employment. Carmona lost her job to take her infant to the
hospital—hardly gross misconduct—and immediately sought to resume her job. See also P*I*E
Nationwide, 297 NLRB 454 (1989), enfd. in pert. part, 923 F.2d 506 (1991). The same can be
said for her departure from Budget Rent-A-Car. She had been hired as a fleet truck and car
driver, but when the company determined under its policies that she was not driving a truck, it
decided to reduce her pay to $8.00 per hour. She decided that rate was significantly less than
she needed, so she quit to seek another job. I find that her decision here was perfectly
reasonable under the circumstances. Certainly Respondent has not shown that her decision
amounted to a willful loss of employment. 5

I conclude that Respondent has not met its burden of demonstrating that Carmona
willfully refused employment during the period in question. Accordingly, her backpay has been
computed correctly at $49,747.27.

Raymond Coletti

In its brief, Respondent has advised that it does not dispute the backpay calculated on
behalf of Raymond Coletti as set forth in Appendix C-6. Accordingly, no discussion of his
circumstances is required. The net backpay due Coletti is $25,611.89.

Robin Corral (Delgado)

Robin Corral’s backpay period begins on July 5, 1997 and ends on January 23, 2002.
Respondent’s principal contention regarding this claim arises from Corral’s testimony that she
was fired from an interim employer, the San Gabriel Valley Tribune, in 1999 and later quit a
subsequent job at Lawrence Equipment. Respondent has constructed a backpay alternative
based on the pay rate earned at Lawrence Equipment. It should be observed here that the
Appendix C-7 for Corral has been modified and the modification is in evidence as G.C.Exh. 9.
Respondent does not quarrel with the adjustments made as set forth in that exhibit, but believes
it should be further modified based on Corral’s discharge for misconduct and/or the subsequent

5 Although Carmona lost her drivers license during part of this time over missing a court date
concerning a fix-it ticket, Respondent has not made an issue of it. The argument would appear
to lack merit, for she regained her license and her Class B passenger endorsement. She got
her Class C license back as soon as she paid her fine. It did not affect her ability to obtain
gainful employment during the backpay period.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
7

quit.

While employed by Ryder/ATE, and before her unlawful discharge, Corral had been
attending night school to acquire office skills, specifically bookkeeping. As a result, she did not
limit her interim job search to bus driving and when she had completed the class, she obtained
work with a temporary office staffing company which assigned her to a temp job with the San
Gabriel Valley Tribune. After a period, that employer hired her directly as a customer service
representative and she remained employed there until her discharge.

Corral explains that she was fired after being called in for a 5-hour Saturday shift, a
situation which created a child care problem for her. She had seen other employees bring
children to work and believed it would be okay to bring her baby in that day. An acting
supervisor objected and a verbal disagreement ensued. As a result, that employer discharged
her, citing ‘misconduct’ as the reason. Although a discharge for insubordinate conduct, which
Corral appears to acknowledge here, cannot be approved as a general policy, nevertheless it
did not amount to a forfeiture of backpay. It simply was not gross misconduct, nor was it a
deliberate or willful attempt to get fired.

As discussed above, a backpay claimant who is fired by an interim employer is to be
judged under the standards established by the Board in Ryder Systems and P*I*E Nationwide,
both supra. In Ryder, the Board said at 610:

The Board has consistently held that discharge from interim employment, without more, is
not enough to constitute willful loss of employment. P*I*E Nationwide, 297 NLRB 454
(1989), enfd. in pertinent part, 923 F.2d 506 (7th Cir. 1991), and cases cited therein. A
respondent must show deliberate or gross misconduct on the part of the discharged
employee in order to establish a willful loss of employment. Here we find that the
Respondents failed to show that Larry Elmore's conduct fell within that standard. Elmore
may have missed several scheduled deliveries, but he committed no offense involving moral
turpitude and his conduct was not otherwise so outrageous as to suggest deliberate courting
of discharge. 8 Without such proof, Elmore's discharge from ATS will not serve as a basis
for tolling his backpay.
--------
8 See Lundy Packing Co., 286 NLRB 141, 146 (1987), enfd. 856 F.2d 627 (4th Cir.
1988), and Mid-America Machinery Co., 258 NLRB 316, 319 (1981). The same reasoning
applies with regard to David Elmore's discharge from Music City. [Emphasis supplied]. 6

What the Board observed in Ryder Systems can also be seen here. Corral’s conduct
does not suggest that she deliberately courted discharge, nor did she commit an act of moral
turpitude or something equally extreme. Accordingly, I do not find that her discharge from the
San Gabriel Valley Tribune to be evidence that she forfeited her right to backpay.

Analysis of her departure from Lawrence Equipment produces a similar result. That
interim employer was a kitchen equipment manufacturer (tortilla machines) which hired Corral
as a receptionist at $8.00 per hour. It was a family-owned business with little opportunity for
advancement. After 6 months, Corral resigned to take a bus driver job with Laidlaw Transit.
Clearly the receptionist job was not employment in any way equivalent to the trade from which
she had been unlawfully dismissed. On the other hand, the Laidlaw job was. She had every
right to seek a job in the field where she had been most successful. She had continued to meet
6 See also Met Food, 337 NLRB 109 at 114 (2001).

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
8
the state licensing requirements and the transition was relatively smooth. That it paid less than
the receptionist job is of no legal consequence. Its potential was greater, it provided overtime
opportunities and would become substantially equivalent to the Ryder/ATE job.

In August 2001, Corral, for family reasons, decided she needed more money to take
care of her children and she was becoming tired of bus driving. She seamlessly found another
job at a company known as Metro One. That employer’s business is not clear from the record,
nor is the nature of the job she took. She worked from August 2001 through November 2001.
She testified that she was discharged from that job as a consequence of a medical issue.
Apparently, off the job she suffered a broken nose, resulting in bruising and some dizziness.
The company was unsympathetic to her plight and, despite a doctor’s note, dismissed her for
excessive absenteeism.

Respondent makes no argument regarding Corral’s departure from Metro One, only
contending that the Lawrence receptionist rate should be used for the remainder of the backpay
period. If that were done, it would have me assume that she would have remained continuously
employed for the remainder of the period (thereby crediting all periods of unemployment with
that quarterly rate and earnings). This would offset the gross backpay claim to zero. As noted, I
cannot do so, for there is insufficient evidence that Corral deliberately avoided work or took
herself off the job market. Accordingly, I find the General Counsel’s backpay specification, as
modified in G.C.Exh. 9, to be a reasonable estimate of her net backpay, $29,399.59.

Donald Duplessis

Donald Duplessis’s backpay period is from August 7, 1998 through May 27, 2003. He is
one of the few whose specification shows virtually no interim earnings over this 5-year period
and his net backpay is nearly $98,000. Respondent’s principal argument is that his testimony
about job searching is not credible. Even so, it acknowledges that Duplessis’s first 3 years of
searching are not really challengeable. In its brief it asks that the backpay cease beginning with
the 3rd quarter of 2001, thereby excluding the last 2 years from the calculus.

It is accurate to say that Duplessis’s responses to Respondent’s inquiries create some
questions which are not fully answered. Part of it is because while Duplessis could testify about
the places he sought work, he had difficulty in saying when those applications were filed. Many
applications were completed from the State’s Employment Development Department (EDD)
which would fax applications and resumes to employers who had listed jobs. The EDD
apparently did not routinely provide copies to Duplessis of the material it sent out on his behalf.
Even if it was available, Duplessis had no real incentive to maintain whatever he did receive.
Duplessis, like most of these claimants, did not know until the compliance stage began,
sometime after the court judgment of October 17, 2001, that he was a victim of an unfair labor
practice. Thus, he and the others remained unidentified for years while the case was
processed. As a result no one, not the Union, not the Board’s Regional Director and not the
employing entities, was able to advise them to keep job search records or to mitigate by finding
employment. Moreover, many of them could not be readily found, having dispersed to a wide
variety of locations within Southern California, a large, heavily populated area. Most of these
individuals were poorly paid, held short-term jobs and were constantly on the move, looking for
better situations. They could not usually be found in the telephone directory and some had
even left the state.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
9
However, none of these facts advance Respondent’s argument that the last 2 years of
backpay should be denied. Duplessis, in 1998 during the earlier part of his backpay period, had
begun to attend a nearby community college 7 on a part-time basis. He was seeking to expand
his job marketability, trying to “restructure” his life. He said he was weak in computer skills,
English literature and math. He also sought exposure to the standard general education
requirements of the California college systems. He even tried to improve his typing skills (no
doubt for computer keyboarding).

Duplessis did testify that during the 2000-2002 period, at least half of which is in the time
frame Respondent wishes to strike, he sought many types of jobs hoping to utilize his college
learning. He took civil service tests for city, county and state agencies, applied as a tree
trimmer, and sought work as an airport driver and delivery driver. He had only middling success
with the civil service tests, which he took up through 2002. He had also applied for work at the
Pomona Unified School District, the UCLA Medical Center and Childrens Hospital.

He survived during this period by living with his younger brother, his wife and their
family. Early on, he had been able to keep from falling into debt because he had had the
foresight to purchase some debt/unemployment insurance through his credit card company.
During the entire backpay period he made himself useful around his brother’s house, living rent
and board free. This enabled him to attend the community college and to search for jobs.
Certainly no employment relationship was established, although he felt an obligation to justify
his presence in the house. 8

In order for Respondent to prevail in persuading me to strike the last 2 years of his
backpay from the specification, it must provide some evidence that Duplessis failed to seek
work. Respondent argues that he should have succeeded in finding some employment in the
job market, even if he had to lower his sights from the driving jobs he was qualified to perform.
It is here where Respondent’s argument fails. Lack of success is not proof of a failure to
mitigate. Respondent’s conclusions are mostly circumstantial assumptions, not evidence. In
rejecting its contention, I am mindful of the fact that as of the date of his testimony, November
2004, Duplessis’s 2002 job-seeking efforts were 2 years past and his 2003 efforts (through the
2nd quarter per the specification) were nearly 18 months past. Memory is a far from perfect
means to test fleeting, and therefore immemorable, events from that distance, and no one had
asked him to keep records. Accordingly, I find that Respondent has not proven that Duplessis
failed to mitigate the backpay as alleged in the specification. He is entitled to the full amount set
forth in Appendix C-8, $97,877.32.

Pamela English (Potts)

Ryder/ATE hired Pamela English in August 1997; she was discharged on May 14, 1998.
Her backpay period begins the following day, May 15, 1998 and ends on January 23, 2002
when Respondent rehired her. The specification seeks backpay totaling $11,902.56.

Respondent’s contentions are two-fold: first, it asserts that in the three quarters following
her discharge (2nd, 3rd and 4th of 1998), she failed to adequately search for work and therefore
did not seek to mitigate the backpay due her; second, additional interim earnings were
uncovered during the hearing that the specification had not taken into account.

7 Mount San Antonio College in Walnut.
8 He did earn some extra money scavenging for bottles and cans. These negligible
earnings helped him with tuition and have been accounted for in the specification.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
10

Before discussing Respondent’s first argument, it should be observed that although the
backpay period covers fourteen full quarters and parts of two others, it reflects no gross
backpay calculation for nine of those quarters. Therefore, only six quarters can even be in
issue.

A review of English’s testimony regarding her search for work during the first three
quarters does not support Respondent’s contention. It argues that two of the applications relied
upon to prove English’s job search during those quarters were actually completed before she
became a victim of the unlawfully imposed attendance program. As English testified, when she
became aware that she was in danger of losing her job, she applied to two other transit
agencies, Omni Transit in San Bernardino and Orange County Transit (apparently in Orange).
She said these applications were to remain active for 6 months after being filed. Therefore, it is
clear that she had active applications for employment in her field on file immediately after her
discharge. Those applications, standing by themselves, warrant the conclusion that she was
actively seeking work during the initial months of her backpay period. Her testimony shows that
she renewed at least one of them fairly quickly after her discharge. (ENGLISH: “Well, I mean
you put on a application you terminated and you applying for another bus job, they're kind of like
it's kind of hard to get fired from a bus job, really, but I had put in a application at Orange County
Transit and I had received a letter that they could not hire me at this time. I had put that in after
I got terminated from Foothill.”) She would not have told Orange County Transit that Foothill
(Ryder/ATE) had terminated her on her original application because the event had not yet
occurred.

In any event, the Orange County Transit rejection letter, received some 3 months after
the Ryder/ATE discharge, spurred her to further action. She registered with the unemployment
office (EDD) for the purpose of trying to find work. Unconventionally, she did not simultaneously
seek unemployment benefits. Instead, she used their resources to look for a job and sought
work near her Pomona home.

ENGLISH: A lot of people was going to Orange County Transit because, you know, I don't
know. They was paying a little more, you know . . . But I was waiting around for that. And
then, when I got the card in the mail saying that, you know, they couldn't hire me at this time,
then that's when I went to the unemployment office. So three months was gone and, you
know, waiting for that. I was looking forward to that because some people had got hired.
You know, you're like sitting around waiting. That took some of my time . . . And then, when
I found out I didn't get that job, then that's when I went to the unemployment office and I
would look in the computer and I'm kind of computer illiterate, so I don't really catch on and
they had this computer thing going on.
So I went down there and I was trying to find -- you know, you try to find a job similar to what
you were used to and a lot of the jobs that I wanted were in L. A. and I didn't really know too
much about L. A. I was always a close to home type of person. So it either had to be
Pomona or somewhere in San Bernardino, which is where I was seeking and I couldn't find
anything, you know, like that, and I put in applications at Omni, at Omni Transit. I didn't
pass the test on there.

English also applied for work with the Pomona Unified School District, apparently
seeking work as a driver. They offered her security guard work which she did not want. As it
was not equivalent employment, she was free to turn it down. Having been trained years before
as a registered nurse, she also applied for nursing work with the nearby Pomona Valley

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
11

Hospital. She testified that she observed the personnel clerk throw her application in the trash.
That happenstance did not really offend her because she had long since decided to give up that
profession as it did not suit her.

Her efforts with EDD, however, eventually paid off. She found a part-time truck driving
job with Sky Chefs at the Ontario International Airport. She transported hot meals from the Sky
Chefs kitchen in Ontario to the Palm Springs airport, a round trip of about 140 miles. She
worked a 5-hour shift, from 6 a.m. to 11 a.m. At the Ontario airport she found a second part-
time job, driving a shuttle bus for Ampco Parking Systems. These jobs came to her in the 1st
quarter of 1999.

While it could be said that English’s job search in the preceding 2-½ quarters could have
been more constant, it seems to me that her efforts exceeded the minimum to qualify as
reasonable. She was distracted to some degree by family issues—being the single mother of
three teenage girls, having the house in which they lived sold out from under her by a
resentful/abusive ex-husband, and keeping that ex-husband at bay. Despite those concerns
she sought and, when she found it, embraced work. 9 I have no doubts that she was an active
job seeker during that 2-½ quarter period.

The second issue is one of proof of proper allocation. English answered Respondent’s
subpoena by producing two Internal Revenue Service printouts containing information from W-2
forms for tax years 1999 and 2001. Respondent has allocated these newly-learned interim
earnings in a fashion which reduces or eliminates the net backpay in those quarters of 1999 and
2001 where gross backpay has been shown. I am not convinced that such an allocation is
acceptable.

Compliance officials often spread annual earnings equally across all four quarters of a
year. They do so for gross earnings (sometimes modified by known wage changes) and for
year-long employment. And, they are sometimes forced to make a four-quarter allocation when
they are unable to assign the earnings to their proper quarters due to a lack of information or
when they are unable to make a reasonable determination of when the employee was actually
working. The better practice is, of course, to assign interim earnings to those quarters during
which the employment occurred.

Respondent has chosen to allocate these interim earnings in a way most advantageous
to it without regard to the quarters in which they were earned. The 1999 claim under the
specification is for quarters one and two. The specification seeks no backpay for quarters three
and four. The IRS printout (English Exh. 1) does not name the employer, but does provide
wage and withholding information. Respondent did not really inquire about those earnings and
when they might have occurred. English herself was a bit uncertain saying “. . . it's just
confusing me because it don't have a year and I was sick and working and sick and working and
I kind of get confused. . . .” She could not picture 1999 very well in her mind.

What we do know is that English was working during the first two quarters of 1999 and
earned $5388 in wages. We also know from the IRS form that she earned, from that unnamed
employer, wages of $6264. We can be fairly certain that the two figures do not come from the
same employer and therefore do not duplicate each other. It seems likely to me that the
9 Eventually English determined that two simultaneous jobs were too much to handle and
she gave up the Sky Chefs job. A month later she suffered an illness which forced her from the
Ampco job as well.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
12
earnings do not overlap (at least for quarterly Woolworth 10 purposes). Thus, it is more
probable that the earnings shown in English Exh. 1 properly belong to quarters other than one
and two. While Respondent’s counsel may have been able to draw the witness out on the point,
he really made no effort to do so. Since the burden to prove interim earnings rests with
Respondent, it appears to me that he failed in such endeavor.

The same can be said for the earnings shown on the IRS printout for tax year 2001
(English Exh. 2). The specification seeks backpay only for the first quarter, where interim
earnings have already been admitted. Even there the gross was reduced, so the net is only
$249. Respondent asserts that the earnings from the two employers shown on English Exh. 2,
a total of $1492, should be allocated to that first quarter and thereby fully offset the gross
backpay. Again, it is fairly clear that those earnings did not come from the first quarter of 2001
and should be more properly assigned to other quarters. Once again, Respondent did not
inquire about when those earnings occurred.

Counsel for the General Counsel did offer to modify the specification with respect to both
years, if appropriate. That offer does not seem to have been accepted; certainly no adjustment
has been proposed. I suspect that Respondent’s proposal in its brief, if proposed to the
Regional Director, was rejected for the same reasons I have given above.

I make one other observation. If indeed those interim earnings actually occurred in, or
can properly be assigned to, a quarter where no gross backpay has been claimed, then each
quarter would have to be fully reexamined. If there had been interim earnings in such a quarter,
it would logically follow that English had sought, and had obtained, work for that quarter. That
fact would call for a gross backpay claim for the quarter that might well exceed the interim
earnings and thus result in a net figure available to the claimant in that quarter. Absent a motion
to amend the specification, I regard the matter as closed. Respondent did not demonstrate that
the discovery warrants adjusting the specification as written. Moreover, it can be understood
that the compliance officials did not deliberately overlook any interim earnings. The fault, if any,
lies with the passage of time and the uncertain memories which accompany it. English is
entitled to the sum set forth in Appendix C-9, $11,902.56.

Robert Giles

Ryder/ATE hired Robert Giles in January 1997. He was a victim of the unlawfully
established attendance point system and was discharged on December 3, 1997. The
specification shows his backpay period to be from December 4, 1997 to May 3, 2002. At that
time Respondent offered him reinstatement and he accepted.

Giles was one of the very fortunate members of the group who suffered this type of
discharge. Within hours he went to Foothill Transit’s El Monte yard, located about 16 miles to
the west and operated by Laidlaw. He had earlier been trained by Laidlaw, was a known
quantity, and he knew individuals holding hiring authority there. He was hired on the spot, albeit
at a lower pay rate, and worked for Laidlaw for about 4 years.

Respondent’s principal argument concerning Giles is its belief that in March 1998,
Ryder/ATE’s Pomona General Manager Wayne Fritz offered him reinstatement and he turned it
down. The General Counsel observes that the circumstances of the offer are somewhat unclear
and that whatever Fritz may have said, the ‘offer’ would not have crystallized until after the

10 F. W. Woolworth Co., 90 NLRB 289 (1950).

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
13

unfair labor practice hearing. That hearing took place on June 24, 1998. 11 In March, when the
conversation took place, Fritz was aware of the issues the complaint presented and knew Giles
was one of the employees whose circumstances were in issue even though he was not named
in the complaint.

Giles’s route, while working for Laidlaw, took him to Respondent’s Pomona yard, giving
him the opportunity to converse with his former employer. On that occasion in March 1998 he
spoke to Fritz in the office doorway.

When Fritz testified, he framed the so-called reinstatement offer as having been made in
writing:

Q [By Mr. SILVERSTEIN] Now, Mr. Giles states in his declaration, "Fritz offered to reinstate
me to my old position." Do you remember that conversation?
A [Witness FRITZ] Yeah, somewhat. I remember we sent the letters out to everybody, and
Robert, I think, in fact, after the letters went out, was the first time Robert came to see me.
* * *
Q [By Ms. McNEILL] What did you say to [Giles], to ask him to come back? What do you
recall?
A I don't recall asking him verbally to come back. I recall our discussions, and part of one of
those discussions was his wanting to know if he could come back to Ryder. I told him I
wasn't sure. I didn't know, and then, subsequent to that, it was decided that if we had
people that wanted to come back, and we knew or saw them, or whatever, that we could
offer, and that is what generated the letter.
Q Oh, I see. I see. It is then your testimony that you made no verbal offer to Giles for him to
come back?
A If I did, I don't remember necessarily. I remember sending the letter, because I remember
thinking about who do we know, who do we know where they are, and so forth, and Robert
came up, and we did a letter.

As seen, Fritz could not describe his conversation with Giles. Moreover, no letters were
offered in evidence. Fritz, who no longer works for Ryder/ATE, was of the opinion that the
letters remained on file there; despite that, Respondent did not offer in evidence any 1998 letter
addressed to Giles. However, it is true, as framed in counsel’s question, that Giles gave an
affidavit to the Regional Office in which he agreed that Fritz had made an oral reinstatement
offer of some sort. Still, there is more to it than a bare offer.

Q [By Mr. SILVERSTEIN]: Now, Mr. Giles, now that you have read that paragraph, does that
help refresh your recollection that Mr. Fritz did, in fact, offer to reinstate you, to your old
position?
A [Witness GILES] Yes.
Q And, in fact, Mr. Fritz did offer to reinstate you, to your old position.
A Yes.
Q Okay and what did you tell him, in response to his offer, of reinstatement?
A I just told him that I was working over at Laidlaw and that is what he told me, that it would -- I
mean, it would not matter now. I mean, like, he told me the Trial would be sometime, in the
future.
So, I mean, he offered to reinstate me and I told him that I was working at Laidlaw and, you
know, I would not have been reinstated, at that moment, right at that moment. So, I mean, it
11 The underlying unfair labor practice charges had been pending since July 14, 1997.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
14
was okay that I was working at Laidlaw because I was not being reinstated, at that moment.
Q Okay.
A Right, at that moment, just to not worry.
Q All right. Well, I am not sure I understand that. I think what your declaration says -- let us
see, if we can refresh your recollection, in this regard; that you decided not to accept the
offer because you were working, at Laidlaw. Is that what happened?
A Well, at that -- I mean, at that time, that was the time that he told me that I could -- or, I
mean, it would be -- the reinstatement or anything -- reinstatement -- because he did -- he
mentioned the money. I mean, a money reward, for the time that I would -- if I would had --
you know, like he said, I may be entitled to back salary or something like that. He
mentioned that, also, and he said it would be, after the Trial, after it had gone to Trial.

Based on the foregoing testimony, I find that whatever Fritz said to Giles that day in front
of the Pomona office, it did not qualify as an offer sufficient to remedy an unfair labor practice.
Giles, elsewhere, did say that the offer would have been to his old job. However, other
conditions were not discussed. Fritz never offered him any backpay, saying only that whether it
would be owed depended on the outcome of the unfair labor practice proceeding. Furthermore,
according to Giles, the date of reinstatement was up in the air. He was happy at Laidlaw but
might have been willing to return. Even so, he says Fritz told him he didn’t need to worry about
when he would come back. Apparently there was no hurry because no decision needed to be
made until after the unfair labor practice proceeding decided matters. Respondent’s argument
on this issue is rejected. A valid reinstatement offer must be specific, unequivocal, and
unconditional. Cassis Management Corp., 336 NLRB 961, 969 (2001).

Respondent’s second argument is that Giles quit his Laidlaw job in October 2000
because he was about to reach Laidlaw’s limit under its attendance policy and his job was
therefore at risk. Giles does acknowledge, at least in part, that that was his reason for
resigning. He said it was better to quit than be fired. But he had other reasons as well. He
wanted a job with more security: in his words, a ‘regular job.’ Nevertheless, he sought and
quickly obtained driving work. Still, the first job, with Diversified Para-Transit, was for minimum
wage. That amount was insufficient so he quit. He found a shuttle job with Ampco Parking
which paid $6.25 per hour with a promise of tips. He worked there for a month and a half, and
when the tips did not turn out to be sufficient, he quit to return to Laidlaw, taking a pay cut from
his previous rate to $8.50. In addition, Giles sought work with Greyhound Lines and the MTA
(Los Angeles Municipal Transit Authority).

The General Counsel argues that Giles’s quitting the Laidlaw job was reasonable, citing
Big Three Industrial Gas, 263 NLRB 1189, 1199 (1982). I am not entirely convinced. See, for
example, the Board’s treatment of employees who quit their interim employment for a variety of
marginal reasons in Knickerbocker Plastics, 132 NLRB 1209 (1961). I recognize that the case
is a relatively early one and can today be distinguished on other grounds, not the least of which
would be that their interim employment was not substantially equivalent. Still, the case provides
a series of job-quitting examples which the Board would not accept. I might well be tempted to
follow that case here. After all, Giles certainly did have a substantially equivalent job with
Laidlaw. He was driving a passenger coach in the same general geographical area and under
similar working conditions. Unless there was a legitimate reason to quit, he shouldn’t have done
so. Nonetheless, I accept his analysis of his situation. He had allowed his attendance points to
build up to such a degree that he was in imminent danger of being fired. Had he stayed on and
been fired for that reason, it would not have been to anyone’s advantage. He would have taken
a discharge for cause, but Respondent could not argue that the discharge itself was gross
misconduct and a willful departure from the workforce. It would have rendered Giles less
desirable to subsequent employers and would have risked his interim earnings being reduced or

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
15
even zeroed out if he couldn’t find work. As Respondent has recognized, such quits do not
extinguish the backpay in its entirety; they only toll it. Both Giles and the General Counsel are
correct when they observe that it is better to have a resignation on one’s record than a
discharge. In that circumstance, I find that Giles’s quitting the Laidlaw job in October 2000 was
reasonable. Therefore, I uphold the specification as set forth in Appendix C-11. The total net
backpay due Giles is $21,786.41.

Cheryl Harris

In its brief, Respondent no longer disputes the backpay claim for Cheryl Harris as set
forth in Appendix C-12. Her backpay period runs from July 13, 2000 to January 28, 2002.
Under the specification, Harris’s net backpay is $29,228.08.

Danielle Hasberry

Danielle Hasberry began bus driving for Ryder/ATE in December 1996. She was
discharged on August 7, 1997 for running afoul of the wrongly imposed attendance policy. Her
discharge grew out of a weeklong absence to attend an out-of-state funeral for her niece; she
had permission to be absent for that purpose, but was fired anyway. Her backpay period runs
from August 8, 1997 to January 23, 2002. Backpay, as recalculated in G.C.Exh. 8 (a new
Appendix C-13), is shown as $27,513.66. She obtained equivalent work with Laidlaw at
Foothill’s El Monte yard in late September. The parties agree that the recalculation found in
G.C.Exh. 8 requires some fine-tuning because her Laidlaw employment was calculated on a
$7.50 hourly rate. Hasberry testified, however, that her hourly pay rate at Laidlaw was actually
$8.50. By brief, the General Counsel has provided the additional correction. The figure now
sought is $26,953.66.

Despite the correction due to the Laidlaw pay rate, Respondent argues that Hasberry’s
interim employment history requires further reduction for two reasons. Both are connected to
her resignation at Laidlaw in February 1998. The primary argument derives from the congenital
illness of Hasberry’s son and its connected complications. Under this scenario, Respondent
argues, she would have been forced to quit her job with Ryder/ATE just as she was forced to
quit Laidlaw. Thus, Respondent contends that Hasberry’s resignation due to the child’s
circumstances terminates her backpay in its entirety

Respondent’s secondary argument is that since Hasberry quit Laidlaw, an equivalent
job, her Laidlaw earnings rate should be carried forward as if it had been interim earnings in all
subsequent quarters. Here, it agrees that her quit would not have ended its backpay liability,
but Respondent would be entitled to the Laidlaw rate credited as interim earnings for the
remainder of the backpay period. This would result in fully off-setting gross backpay for several
quarters.

The facts are relatively straightforward. At the end of September 1997, when she took
the Laidlaw job, Hasberry lived in Rialto, roughly 27 miles from her Ryder/ATE job in Pomona.
The Laidlaw job was about 40 miles from her home. In February 1998 she was displaced from
her Rialto residence and moved to San Bernardino. Her new location was about 48 miles from
Laidlaw’s El Monte yard. Neither Rialto nor San Bernardino was an easy freeway commute,

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
16

though both are served by Interstate 10. That section of I-10 is notorious for its glacial pace.
(Today’s alternate route, State Highway 210 would not open in that area until November 24,
2002.) 12

Hasberry testified that the additional commuting time and distance were causing her to
occasionally fall asleep at the wheel as she returned home. In addition, at about the same time,
her son’s condition deteritorated and she decided it was best if she stayed home to care for him.
Accordingly, she resigned from Laidlaw toward the end of February and did not seek work for
about 1-½ to 2 months. The Regional Director has made an adjustment in Appendix C-13 to
account for that circumstance. Counsel for the General Counsel argues that Hasberry did not
permanently remove herself from the job market and backpay resumed as soon as she
reentered the job market.

Hasberry resumed searching for work in April, placing bus driving applications with
Charter Bus Company and Laidlaw’s School Bus System. She applied to be a receptionist at a
hair salon and two restaurants, Millie’s and Coco’s. She sought retail sales work at several
stores in one of the San Bernardino shopping malls and submitted an application to a limousine
service. She also applied to the California Highway Patrol, which was interested, but Hasberry
backed out when she learned the 6-month training period to become an officer would require
her to be away from home for that length of time.

In October, she found work with Jamboree Property Management as a property
manager and worked there until being laid off in November 1999. Shortly thereafter, she took
another property management job with LanTrek Property Management. In the month between
those jobs, having now acquired experience in the field, she applied to two other property
management firms as well as the Riverside Transit Agency. Hasberry stayed with LanTrek until
April 2000. At that point, LanTrek sold out to an individual named Bruce Kao. Kao reduced her
monthly salary from $1650 to $200, forcing her to look for other work. She reapplied to
Riverside Transit and filed applications with Target Stores and Sears Credit. She left Kao in
June when Sears Credit hired her as a telephone dun and she stayed there until late summer
2001. Hasberry then worked through a temp agency, Innovative Staffing, where she had
continuous employment through the end of her backpay period. Her interim earnings exceeded
gross backpay for the last three quarters of the backpay period and no net backpay is said to be
due between July 2001 and March 31, 2002.

Insofar as the first issue is concerned, whether her quit at Laidlaw constituted a
permanent removal from the job market, the test is whether her quit was reasonable.
Reasonableness, of course, must be measured against what her original job had been. In this
case, her commute to Laidlaw was some 13 miles further from Rialto than the Ryder/ATE job
had been. Clearly, Hasberry had been able to tolerate, given her ill child, a moderate commute
to Pomona. That commute was extended when she took interim employment with Laidlaw,
though perhaps at the limits of her family’s tolerance. When she lost her home in Rialto and felt
forced to move to San Bernardino, she viewed that extension as exceeding her tolerance limits,
though she gave it a fair chance. Falling asleep at the wheel was certainly a risk no one should
have to bear. When her child’s health took a turn for the worse during the same time period, the
two issues conflated and led her to quit.

With respect to the primary argument, that the child’s illness would have forced her to
quit any job she held, it does not follow that her backpay claim ended at that point. In my view,
12 http://www.cahighways.org (last visited July 26, 2005).

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
17
this is nothing more than an issue of reasonableness. First, had the child’s illness occurred
during her employment with Ryder/ATE she would have been eligible for unpaid leave under the
Family Medical Leave Act (FMLA). She had been hired by Ryder/ATE in December 1996, but
the child’s illness did not become acute until February 1998. Absent the improper discharge,
she would have remained employed by Ryder/ATE for the requisite 1-year FMLA eligibility
period, and she could have simply taken FMLA unpaid leave without penalty when the child’s
illness worsened. See 29 CFR Part 825 for the pertinent regulations. Quitting would not have
been necessary and she could have returned to duty after the same 2-½ month period of caring
for the child. Therefore, I find that her quit due to the child’s illness did not terminate her
backpay claim.

A similar analysis regarding Hasberry’s commute length also fails. Had she remained at
the Pomona yard, her commute would have remained only 27 miles and had she maintained the
pay rate, it is quite possible that she would not have lost her Rialto residence. It cannot clearly
be said in that circumstance that the viability of her backpay claim should be made to rest upon
a family decision she would not have had to make had she remained employed with Ryder/ATE.
It was Ryder/ATE’s decision to discharge her that put her at risk. Respondent cannot be heard
to say that it should benefit from what befell her after the discharge. Her decision to move to
San Bernardino was certainly reasonable, given her choices. Thus, while the Laidlaw job may
have been a barely equivalent job from the outset, it was no longer equivalent when she lost her
residence and was forced to undertake a much longer commute, one which put her at a risk the
shorter commute did not.

Under these circumstances, I find that Hasberry’s net backpay, as adjusted, has been
properly calculated as $26,953.66.

Lonnell Horn

Lonnell Horn was hired on May 12, 1997 as a coach driver and was discharged a little
more than 2 months later on July 28, 1997. He was a probationary employee at the time he
was fired for breaching the unlawfully imposed attendance policy. Although the parties have
agreed that his backpay begins on July 29, 1997 and ends on June 14, 2004, Horn is one of the
subjects of the stipulation in G.C.Exh. 2 in which Respondent reserved certain arguments
relating to probationary employees and employees who were discharged for cause. He chose
not to accept his 2004 reinstatement offer.

As Horn is the first probationary employee to be encountered in the decision, it is
appropriate to note the general rule regarding that status. The Board observed in West Point
Mfg. Co., 141 NLRB 819, 83813 that probationary employees are fully protected by the Act and
entitled to the same protection enjoyed by any statutory employee. Respondent’s argument that
probationary status relieves it of liability to Horn and the other probationary employees is
rejected as inconsistent with the goals of the Act. The issue will not be discussed further.

Horn was one of the last claimants to testify, appearing on the last day of the hearing.
Much of his testimony related to his circumstances in finding work during the backpay period.
About two-thirds of the way through his testimony, he made an admission that caught everyone
by surprise.

13 enfd. in part, 330 F.2d 579 (4th Cir. 1964), cert. denied 379 U.S. 882 (1964).

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
18

Q (By Mr. SILVERSTEIN) When did you apply at Omni Transit?
A (Witness HORN) I can't remember, I don't know the date.
Q Was that right after -
A It was right after.
Q Right after Ryder/ATE -
A Yes.
Q Do you know, have you ever had any issues with your license, suspensions or anything like
that?
A Yes.
Q What were the issues -
A In '90 I got a DUI [Driving under the influence of alcohol].
Q When was that?
A I can't remember, it was in '90.
Q I am sorry -
A It was in the '90s. I don't know what date.
Q Was it after your employment at -
A After my employment.
Q Did that pretty much disqualify you from working in the transit industry?
A Right.
Q Have you had any other tickets or license problems?
A No. Driving?
Q Driving.
A No.
Q And so just to clarify, if your last day at work at Ryder/ATE was July 28th, 1997, when in
relation to that do you think you got your DUI?
A Two years after that, I think.
Q So May of 1999?
A Somewhere in there.

Horn, as can be seen from this snippet, and confirmed by a review of his remaining
testimony, did not have good recall for dates and sometimes not for sequence either. His lack
of clarity regarding the date of his DUI conviction created some practical difficulties. In his initial
testimony, he sounded as if the conviction had preceded his hire in 1997. He clarified it quickly
to estimate it as occurring 2 years after his hire, which would put it, as counsel suggested, in
May 1999. Still, the ramifications for this case were unclear. Horn knew he had been
disqualified from transit driving, but no one else did. Without advance notice of the issue,
neither counsel nor I was prepared to fully explore it with the care a backpay specification would
require.

Respondent’s second witness had been Salvador Garcia, currently Respondent’s
assistant general manager, but in 1997 a Ryder/ATE manager14 of significant responsibility,
experience and knowledge. Counsel asked him a series of background questions concerning
company policies, mostly to provide a general understanding of the setting. In that somewhat
limited context, he asked the following:
14 Garcia has worked at this yard for 13-½ years in various capacities. He started as a
driver but has served as dispatcher, supervisor, projects manager, safety manager, training
manager, safety quality control manager and operations manager. His testimony came so early
in the hearing, no one thought to ask him what his job was in 1997 during Horn’s short tenure.
Clearly Garcia is knowledgeable about the practices of the Foothill Transit District’s
concessionaire, whether Ryder/ATE or Respondent.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
19

[By Mr. SILVERSTEIN] . . . Mr. Garcia, does (sic) First Transit and its predecessor entities have
a drug and alcohol policy?
A [Witness GARCIA] Yes, we do.
Q What is that policy?
A Our drug and alcohol policy is zero tolerance. We have pre-employment and if a person
comes out dirty, on a pre-employment, that employee -- that person will not be hired, by the
Company.
We have a random poll, which is Federal guidelines; we follow that. We, also, have
reasonable suspicion and, unfortunately, we have had people, sometimes, fail the random
and a few people, we have identified, as reasonable suspicion and they were terminated;
zero tolerance.
Q Okay. If you have a drug or alcohol issue, you are terminated.
A Yes. We are dealing with the public safety and that is very important to us and, also, the
reputation of our Company is very important.

In addition, even before Garcia provided his testimony, the General Counsel had put on
a short, independent case. It involved driver Tom Montoya whom the General Counsel needed
to support its contention that Montoya had been fired under the unlawfully imposed rule.
Montoya’s own circumstances are discussed infra. In the course of that factual development,
Montoya gave the following testimony on cross-examination which is pertinent to Ryder/ATE’s
policies as they likely would have been applied to Horn:

A [Witness MONTOYA] It is always safety. Safety first.
Q [By Mr. SILVERSTEIN] Okay, and so, is it well known in the industry that you could be fired
if you were in excessive accidents?
A Yes, it is.
Q Okay, what about driver alcohol issues? Is that --
A Oh, you are out the door.
Q Okay.
A I just had a random the other day. They pulled me off of the route, "Let's go." Random; the
bus companies don't play like that.
* * *
Q So, and once again, this goes back to because you are in a safety sensitive position?
A Yes.
Q Okay.
A You don't want guys stoned driving your bus.

After the close of the hearing Respondent moved on January 24, 2005 (filed January 26,
2005) to reopen the record in order to present a court-certified copy of Horn’s DUI conviction. I
later permitted the parties to file supplemental briefs on the issue and what effect the conviction
would have had on Horn’s continued capability of driving commercially, as well as whether
Ryder/ATE’s zero tolerance policy would have been applied to him. The parties’ responses
have been helpful.

Based on their responses, I have determined to receive the certified conviction record,
which is a self-authenticating document under Fed.R.Evid. 902(4). If I were to deny the motion,
I am certain that it would be regarded as an abuse of my discretion, particularly given the
unexpected nature of Horn’s admission on the last day of the hearing. Accordingly, the motion
is granted and Exhibit A attached to it is received in evidence.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
20
The certified conviction shows that Horn, on September 8, 1999, in Pomona Municipal
Court, pleaded guilty to count 2, driving a vehicle in violation of California Vehicle Code
§23152(b), driving with a blood alcohol reading in excess of .08%. A conviction was entered
and he was placed on 3 years formal probation and fined $500. He was also assessed $850 to
be paid to a state penalty fund.

In addition, a United States Department of Transportation regulation disqualifies from
commercial driving holders of commercial drivers licenses, as Horn assuredly was, upon their
conviction of “being under the influence of alcohol as prescribed by State law” or if convicted of
“having an alcohol concentration of 0.04 or greater while operating a [commercial motor
vehicle].” See 49 CFR §383.51 ff. and the chart which accompanies it. The disqualification is
for 1 year for the first offense.

I shall assume here that this was Horn’s first offense, though in truth he was never
asked. Second, I shall assume that his conviction on September 8, 1999 occurred as a result of
him driving a noncommercial vehicle, and that the second part of the DOT regulation cited here
does not apply, though again, he was not asked. Therefore, it is clear that upon the conviction,
Horn was barred by the first portion of the rule from working as a commercial driver for 1 year
beginning from the conviction date.

This raises the question of whether Respondent’s zero tolerance policy would have been
applied to him if Respondent had known about it. Both Respondent and Ryder/ATE no doubt
have a relationship with the Department of Motor Vehicles whereby the DMV notifies it of
license suspensions of its drivers. The system is certainly not foolproof in the best of times.
Here, of course, he was not on Respondent’s payroll at the time of the conviction and
Respondent would not have been notified. In fact, Respondent might never have learned of it.
Even so, had Horn been employed as a driver for Respondent at the time of his conviction, I
think it is clear that the policy would have been applied to him and he would have lost his job at
that point. Indeed, he knew, as demonstrated in his quoted testimony, that the conviction
disqualified him from driving in the transit industry. Horn’s colleague, Tom Montoya, explained it
even better than manager Garcia: a transit company cannot allow its drivers to be “stoned” on
the job.

I agree. No transit company, concerned for the safety of its passengers, can employ a
driver who has demonstrated that he is willing to drive while intoxicated. I find, therefore, that
Horn would have been fired from his job as a coach driver immediately upon his conviction. In
fact, given his knowledge of the disqualification rules, and the fact that Horn does not appear to
be given to deceit, if Respondent had still employed him it is entirely likely that he would have
informed management of the conviction and/or left of his own accord.

Accordingly, I find that he either would have been fired or would have resigned on
September 8, 1999. Therefore, Horn’s backpay period ends on that date.

The General Counsel has provided, attached to its supplemental brief, an alternate
Appendix C-14 which I have used to recalculate Horn’s backpay for the shortened period. It
consists of net backpay for the 3rd and 4th quarters of 1997, all quarters of 1998, and the 1st, 2nd
and 3rd quarters of 1999. Adding the net backpay figures from those quarters, Horn’s total net
backpay becomes $31,624.83 without regard to the question of whether he had made a proper
effort to mitigate his backpay upon his discharge.

Even so, there is some question regarding Horn’s effort to mitigate. Horn, a
probationary employee, was discharged at the end of July 1997. Shortly thereafter, he

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
21
embarked upon an effort to find traditional employment. He sought work with one bus company,
Omni Transit in San Bernardino, and a number of retail stores, including Home Depot, Miller’s
Outpost, Pavilions, Food 4 Less and Trader Joe’s. About 3 months after losing the Ryder/ATE
job, his brother, pastor of a church, in exchange for room and board, put him to work as the
church handyman. He lived with his brother who also provided him with a variety of necessities,
including clothing, toiletries and occasional spending money. Except for that, Horn did not get
paid for his duties. Eventually, in 2000, past the 1998 cut-off date set forth above, Horn became
a minister but he has not been employed in that capacity. He later worked in other fields, but
since that work also occurred after the cut-off, it is unnecessary to consider it.

This suggests that Horn either made an inadequate search for work or underemployed
himself, by accepting room and board in exchange for his church handyman duties. The
Regional Director, however, seems to have accounted for this situation by assigning a quarterly
value to it of $1050.00. Respondent has not challenged this interim earnings credit as
unreasonable. Accordingly, I shall let the matter stand. Therefore, I accept the calculations
beginning with the backpay period through the date he would have been discharged for the DUI.
Net backpay for that period is, as stated above, $31,624.83.

Mary Hyemingway

Three weeks before her discharge on April 26, 2000, Mary Hyemingway suffered an
industrial injury to her back and was put on Workers Compensation. It appears from the record
that she accrued attendance points under the wrongly instituted attendance policy for at least
part of the time she was under the company doctor’s care. After her discharge, and for the next
5 months, she continued to seek medical care for the condition, but from her own physician.
Although her doctor limited her to light duty, Hyemingway testified that she was still able to seek
work during those first two quarters which Respondent challenges. The work she sought, she
says, was work which met the light duty limitations.

Hyemingway’s backpay period, according to Appendix C-16, runs from April 26, 2000 to
March 3, 2002. The specification alleges that she is due net backpay of $32,164.79.
Respondent, according to its brief, has no issues with quarters beginning with the 4th quarter of
2000 and running to the end of the backpay period. It takes issue only with the 2nd and 3rd
quarters of 2000. Here, Respondent asserts that Hyemingway failed to seek work or was
unable to seek work, and either failed to mitigate or was unable to be in the job market due to
physical disability.

Hyemingway’s testimony concerning her search for work during 2nd and 3rd quarters of
2000 was fairly limited; she was undergoing therapy at the same time. Her testimony suggests
her search was not very successful:

Q [By Mr. SILVERSTEIN] Okay. All right. Well, I am looking at some of the documentation
you filled out with the National Labor Relations Board and this indicates that you were still
treating with your back all the way, through the end of 2000.
A [Witness HYEMINGWAY] They had me going -- well, then, that is when you go through the
Workers' Comp Hearing, to try to get rehabilitated -- or, I mean, retrained and when they
were going through the re-training Hearing, they still had me going to therapy since I still had
back problems but I could work and stuff but I did know how you can do something and then
go to therapy. You can to work and go to therapy.
So, they had me where I could work, able to work, but needed to go to therapy. So, I went
to therapy and they were trying to get me re-trained, which the Company denied -- they --
Q Okay. So, were you given any re-training, at all?

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
22
A I did not get re-trained.
Q Okay.
A We fought for that but I did not get it.
Q So, it is your testimony that approximately over, more or less, 2000, that is when you were
capable of either --
A That is when I --
Q Going back to work --
A And that is when I starting going out looking for jobs.
Q Okay. In October of 2000, where did you apply, for a job?
A Oh, different places; Accounting, at San Bernardino. I applied to the City of Pomona. I
applied different places.
Q Okay.
A I even applied, at my present job.
Q What is that?
A I even applied back, at First Transit, for an office job.

As one can see from the testimony, she did not pursue any job that she could recall until
October of 2000, by then into the 4th quarter which Respondent does not challenge. Instead,
during the previous two quarters she had focused both on rehabilitation from the injury and a
futile attempt to obtain retraining.

The record on those two quarters is somewhat spare and Hyemingway’s testimony was
rather disorganized as she tried to recall the impact the injury had upon her. Her testimony for
that time frame—principally over matters connected to her Workers Comp claim—is fairly
convoluted. Moreover, during the compliance investigation she filled out a questionnaire in
which she said she was unable to work through December 31, 2000. It is also true that she had
repudiated that statement to some degree. Yet that repudiation would more likely have been
aimed at the 4th quarter of 2000 and would not have affected the 2nd and 3rd quarters which are
in issue here.

Since she was unable to state with any certainty that she had actually searched for work
during those two quarters, I am compelled to deny that portion of the claim. Therefore, I shall
strike the gross amount sought for the 2nd and 3rd quarters of 2000. That subtraction results in a
net backpay of $23,971.51.

Lola Joyner

Lola Joyner’s specification was modified by stipulation through the issuance of a new
Appendix C-18, included in the G.C.Exh. 3 stipulation. Her backpay period runs from June 27,
2000 to January 28, 2002. She eventually returned to work on March 11, 2002. Net backpay
under Appendix C-18 has been claimed in the amount of $32,449.90.

Prior to her discharge, Joyner had been seeing a physician concerning some breathing
difficulties which ultimately proved to be double pneumonia. She received absence points even
though she was seeing the doctor. The doctor told her she would need 30 days of rest before
recovering. She was actually discharged on June 26, 2000, which was a Monday. Although
she could no longer recall the days involved with clarity due to the passage of time, she said
that several days before her discharge, she submitted a slip requesting a 30-day medical leave
supported by the doctor’s recommendation. Despite her request, she was discharged.

She acknowledges, and the parties now agree, that she could not have worked during
that 30-day period due to the illness and its attendant recovery period. The modified Appendix

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
23

C-18 did not take that into account and the General Counsel has in Appendix A to its brief,
reduced the claim to $30,825.28 in order to account for that circumstance. The correction will
be accepted.

Respondent nonetheless argues that Joyner should be denied all backpay for the 3rd
quarter of 2000, for the 3rd and 4th quarters of 2001 and the 1st quarter of 2002, all based on its
contention that Joyner did not make an adequate search for work during those time periods.

Joyner acknowledges that she did not begin searching for alternative work until 2
months after the doctor cleared her to go back to work, seeming to concede Respondent’s
point. However, she also testified that she had filed a grievance with the Union in an effort to
get her job back. Filing such a grievance was an entirely appropriate step to take—if
successful, it would have obviated any need to seek employment from a new employer.
Accordingly, I find as a matter of law that filing the grievance was the same as if she had sought
work from another company. Moreover, aside from any collective bargaining contract
language,15 it would appear that she had rights under the Family and Medical Leave Act, having
worked for Ryder/ATE and its predecessors for over 5 years. See generally 29 U.S.C. §2654,
which permits such an employee to take medical leave without penalty 16 where he or she is
unable to work due to a ‘serious health condition’ lasting more than 3 days. Double pneumonia
would appear to qualify. 17 In any event, an effort to try to maintain one’s job in such
circumstances falls far from a failure to mitigate.

Respondent also argues that even after the doctor’s release, Joyner’s acknowledgement
that she still suffered some lingering effects could have affected her ability to work. It makes a
similar argument related to Joyner’s February 2001 diagnosis of a chronic muscle pain condition
known as fibromyalgia. 18 Its argument is speculative in both instances. Joyner never worked a
straight 8 hour day; bus driving involves two split shifts of 4 hours each, allowing her a
significant respite during the middle of the day. The argument is rejected.

Subsequently, Joyner began to seek work at employers near her San Bernardino home,
including the transit system in that city, Omni Transit. Over a period of time, maintaining her
Class B license with passenger and air brake endorsements, she applied to other transit and
charter bus lines. These included Coach U.S.A., Roesch Transit, Turner Buses, Concept Buses
and Charter Bus Lines. She also checked job availability at Amtrak and S&L Charter Lines, as
well as others she could not recall. She did not seek work at Foothill Transit’s El Monte yard
because it was too far from her home.

Respondent does not dispute the General Counsel’s calculations for the 4th quarter of
2000 and the 1st and 2nd quarter of 2002, apparently conceding that Joyner sufficiently mitigated
the backpay during those quarters.

In subsequent quarters, the 3rd and 4th quarter of 2002 and the 1st quarter of 2003,
Respondent would deny Joyner all backpay based on its assessment of her testimony. During
these quarters Joyner was drawing unemployment and participating in two welfare programs
designed to train the unemployed and enable them to change careers. The plans, known as
15 The pertinent collective bargaining contract is not in evidence.
16 See 29 CFR §825.220 (1998).
17 See 29 CFR §825.114 (1998).
18 The cause of fibromyalgia is unknown and there is no treatment, although remaining
active appears to help.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
24
GAIN and JET, both required the participants to regularly apply for work as they are known as
welfare-to-work programs. JET itself provided job leads to Joyner and she followed up on them
without success. Accordingly, I find she did seek work as required during those quarters. JET
also sent her to San Bernardino Adult School to learn computers and typing.

Respondent argues that these programs and the school required Joyner’s presence
during the work day and therefore she was unavailable to work. Joyner testified, however, that
had she obtained employment while pursuing those programs, the program would regard her as
having become employed and she would no longer need to continue since the program would
had achieved its purpose. Respondent’s argument is rejected.

Accordingly, I find Joyner to be entitled to the adjusted backpay figure of $30,825.28, the
figure provided by the General Counsel in its brief.

Elbert Kellem

Elbert Kellem’s backpay period runs from June 24, 1999 to January 23, 2002. He retired
from the U.S. Army in 1994, worked for the Postal Service until 1996 and was hired by
Ryder/ATE in 1997. As a veteran of the first Gulf War, Kellem has acquired a keen interest in
becoming a drug and alcohol counselor. To that end, while working for Ryder/ATE, he began
taking classes and interning in that field with the Los Angeles Veterans Administration Hospital.
After his discharge he continued that training. He usually took classes 5 days a week from
8 a.m. to noon. In the afternoons he performed clinical type training, serving variously as a
urinalysis intake monitor, conducting classes and engaging in face-to-face counseling with
patients. He also helped VA patients in their own searches for employment. All this work was
part of his goal of becoming a qualified drug and alcohol counselor, and the schooling and
clinical work was unpaid.

Even so, he never stopped looking for paid work, often with public entities or civil service
jobs. Although he scored well on the examinations, someone always seemed to be ahead of
him. Kellem testified:

I put in a lot of applications. I put in for a different variety of jobs. I even put in for a -- I put in for
EDD 19 and I put in for DMV,20 Border Patrol, Immigration, and, with Border Patrol, Immigration I
found out that I was too old after they […] it took them so long to call me because the age cap
was 37 21 and I put in [at] Orange County [Transit]. I put in -- and, when I did some work for
EDD, also, to help them find jobs, that helped me, also, to learn the system and I put in -- and I

19 The California Employment Development Department. The EDD is the state
unemployment agency. As noted in his quoted testimony, though not clearly, his counseling of
VA patients led him to both possible employment with the EDD and to job offerings available
from the EDD.
20 Testimony shows he applied to the Department of Motor Vehicles after the backpay
period ended.
21 Kellem applied for work with the Border Patrol shortly after retiring from the Army in 1994;
his efforts were relatively continuous. Eventually, sometime during the backpay period, he says
the Border Patrol hiring authorities made a tentative offer which they withdrew when they
discovered he was older than the maximum of 37. He had become too old in 1997 or 1998,
before his unlawful discharge, but never knew it until they withdrew the tentative offer.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
25
was putting in job, job, job, job, and I got my score back up where I'm in the top three [of] one
hundred and I'm saying what's the problem? I can find everybody else a job, but I can't get
[one] myself -- you know, I'm in the top three.

He also applied for paid counseling openings with the VA and sought driving work with
Omni Transit in San Bernardino. None of his efforts resulted in a job.

Respondent argues that by going through the VA training as a drug and alcohol
counselor, both because it was volunteer work and because it took up virtually all of the
workday, that Kellem had removed himself from the job market between the 2nd quarter of 1999
and the 4th quarter of 2000. It acknowledges that the remainder of the claim, to the 1st quarter of
2002, is accurate.

First, with respect to the training, it must be observed that Kellem had begun the training
while employed at Ryder/ATE. In essence, it was a moonlighting endeavor. He was certainly
entitled to pursue that goal to the extent it would not have interfered with his search for paid
employment—whether in the counseling field, bus driving or any other job. Moreover, as he
said, it would have been easy to give up the volunteer work if an offer had been made:

Q By Mr. SILVERSTEIN: You were working this internship. You testified it was a full-time
Monday through Friday job, correct?
A [Witness KELLEM]: Yes. I worked [volunteered] full-time.
Q Okay. Didn't that in some ways hinder you or prohibit you from obtaining a 9:00 to 5:00 job?
A No. Because it's something that I agreed to do to help people. No, it did not hinder me. It
was something that I see it was positive.
Q And I'm not saying that it was negative. I acknowledge that it was very, very positive, but
what I'm saying is, since you were spending your hours from 9:00 to 5:00 helping people
and working in this internship and doing your drug counseling, doesn't that mean that you
couldn't spend 9:00 to 5:00 working in some other job that would have actually paid you?
A No. Not -- I didn't see it that way.
Q Okay. You may not have seen it that way, but isn't that the way it was?
A Yeah, that's the way it was.
* * *
JUDGE KENNEDY: Let me see if I understand. You're saying that, if a job had come along,
you would have taken that job?
THE WITNESS: Yes. Yes. I score 100 when I take these tests, like in the top three, and
they haven't hired me. I don't know if that's just to get the numbers.
JUDGE KENNEDY: Well, I'm just saying that there you are working [during the] day in the
counseling, doing counseling, and, if you got a phone call that said somebody was going to
hire you, you'd go. Is that --
THE WITNESS: I'm gone. I'm gone.
JUDGE KENNEDY: All right.
THE WITNESS: I'll see you later. I'm gone. Sorry.

Accordingly, I find that Respondent has not demonstrated that Kellem ever took himself
out of the job market after Ryder/ATE discharged him in June 1999. He is entitled to the sum
set forth in Appendix C-19, $43,479.83.

Edwin Lear

Edwin Lear had worked for Ryder/ATE less than 6 months when he fell victim to the
unlawfully imposed attendance policy. He is a claimant named in the original complaint. His

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
26
backpay period begins on June 7, 1997. Although the specification, Appendix C-20, shows his
backpay period to have ended on January 28, 2002, an earlier reinstatement offer was
discovered at the hearing and, as a result, the parties have stipulated that the backpay period
ended coincident with the end of the 3rd quarter of 2001, i.e., September 30, 2001. This
modification results in only a slight adjustment downward, from $33,278.44 to $33,076.57.

Nonetheless, Respondent asserts that Lear failed to meet the required duty of mitigation.
It contends that after Lear was fired in June 1997, he consistently took lesser-paying jobs when
he could have been working at Laidlaw’s Foothill Transit operation in El Monte.

The facts, however, demonstrate that he had only two full quarters where he had no
interim employment. It does appear to be true that in the beginning, he eschewed employment
with Laidlaw in El Monte in favor of other lower-paying choices. His first job, about a month
after his discharge, was as a bus driver with Western Transit. It turned out to be a temporary
job and he was laid off after 5 weeks. Due to the lower pay rate, he had already begun seeking
work elsewhere. He looked in the paper and also visited his local EDD office weekly in Pomona
where he lived. He applied for some of the warehouse jobs on the EDD list. Eventually, he
secured a job with an airport shuttle company, Hudson General, at Los Angeles International
Airport. That pay rate, too, was less than Ryder/ATE’s. He then found work closer to his home
in Pomona with a Laidlaw paratransit operation known as GetAbout. The pay rate there was
even lower and the hours turned out to be fewer. After a short time, he was laid off in March
1998.

Subsequently, he did apply to Laidlaw’s Foothill operation in El Monte, apparently late in
the 4th quarter of 1998. He worked there more or less continually until the end of the backpay
period. He did quit to try his hand at a drivers education school, thinking the wage/commission
pay system would be advantageous. When that did not work out because there were too few
students, he returned to Laidlaw through the end of the backpay period. He currently works as
a coach driver for the Los Angeles Metro system.

Respondent’s principal argument is that Lear should have gone straight to Laidlaw's
Foothill operation and, since he did not, Respondent should be credited with the Laidlaw pay
rate as interim earnings for the entire backpay period. This would result in a total offset, and its
liability would be zero.

Respondent’s argument is rejected. It is simply a “shoulda, coulda” argument. The
Board will not second-guess a claimant’s good faith effort to find interim employment. In any
event, it is quite clear that Lear sought and found employment throughout the relevant time
frames. He did not remove himself from the job market.

Lear is entitled to the modified amount shown above, $33,076.57.

Juanita Madden

Ryder/ATE hired Juanita Madden on June 2, 1997. Her last day of work was September
19, 1997. At the time she separated from employment, she was still a probationary employee,
having been employed for only 3-½ months. Respondent contends, nevertheless, that Madden
chose to quit and was not a victim of the unilaterally imposed attendance system.

According to the modified specification found in G.C.Exh. 3, Madden’s backpay period
begins on September 20, 1997 and ends on June 14, 2004. She had the good fortune of being
employed throughout the 7-year timeframe. As a result, her net backpay totals only $4,882.42,

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
27
arising from 1998-1999 quarters where her interim earnings did not exceed the gross backpay
figure. In the initial stipulation, GC.Exh. 2, the parties stipulated that the 37 employees,
including Madden, listed in paragraph 1(a), were “discharged, suspended, or otherwise denied
work opportunities as a result of Ryder/ATE’s unlawful institution” of the attendance policy.
Paragraph 1(b) of the stipulation states that by entering into the stipulation, Respondent was not
waiving its right to argue that certain probationary employees, including Madden, were not
governed by the just cause clause of the collective bargaining contract and would have been
discharged under the previous attendance policy “and/or that certain employees resigned. . . .”
Under that clause, insofar as Madden is concerned, Respondent has reserved the right to argue
that she resigned before she would have been fired.

The facts are relatively simple, even if the analysis is not. At the hearing, Madden
acknowledged that she resigned.

Q [By Mr. SILVERSTEIN] Okay. And your last day of employment was September 19th,
1997, correct?
A [Witness MADDEN] Yes.
Q Okay. And now you resigned from Ryder/ATE, right?
A Yes.
Q All right. And you were still a probationary employee at the time you resigned, correct?
A Probably so. I don't remember.
* * *
Q By Mr. SILVERSTEIN: Ms. Madden, since you resigned, no one from the company ever told
you that you were being terminated for receiving too many points under the point system,
did they?
A No.

She also testified that she was barely aware of how the attendance point system
worked, having heard about it second-hand from other employees.

Three documents were offered concerning Madden’s departure. The first is an
employee attendance form dated September 18, 1997, the day before her separation. It shows
that she had been charged with four attendance points that day for a “miss-out” (not defined)
and at that point had accumulated a total of eight points. Ten points would result in her
discharge.

Q [By Ms. McNEILL] Ms. Madden, that document, [Madden Exh. 1], reflects that you
accumulated, at least, 8 attendance points. Do you know whether or not you ever
accumulated 10 attendance points?
A Not that I know of, because I didn't count and, you know, I'm not for sure about the way they
did things, because I don't remember signing anything [concerning receiving 10 points].
* * *
Q BY MS. McNEILL: Do you recall signing that document [Madden Exh. 1]?
A Yes.
Q Okay. Now do you recall on the day that you signed that document was that your last day of
work?
A No. Because I had already quit before I even went back to work.
Q Okay. Before you had gone --
A Yes.
Q Before you signed that document?
A Yes.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
28
Madden’s testimony here suggests that she had given her notice of quitting before, or
upon receiving and signing Madden Exh. 1. She did testify that she thought the attendance
system worked a hardship upon her and that it seemed unfair, as it did not allow for freeway
problems encountered during her commute from her Los Angeles home. 22 Of course, her
choice of dwelling location is not really pertinent because once she took the job she committed
herself to Ryder/ATE’s daily work schedule. Reporting on time was essential because bus
schedules need to be met. A late driver meant a late bus, which in turn meant problems with
timely and reliable passenger service. Madden was probably not a good fit simply in terms of
geography.

Still, there are two versions of the employee change form, one with supervisory notes
and signatures, and one without. The one with the handwritten notes shows that on
September 29, 1997, Operations Manager Laurie Dobson approved Madden’s discharge for
having accumulated too many attendance points, noting that she was a probationer. Other
managers have added their signatures. The other employee change form, with updated
computer data entries, carries her as a code ‘TN’. The code chart, G.C.Exh. 4, does not reflect
what that code signifies, but TN appears to be an entry meaning ‘termination.’ The first also has
a box checked ‘termination,’ a code of ‘TO’ (also not on the chart) and both contain the remark
that she would not be rehired.

Under these circumstances, despite her testimony that she quit, I find Ryder/ATE
considered her a discharge. She was certainly recognized on Ryder’s records as a fired
employee who was ineligible for rehire.

I suspect that Madden simply tried to quit before she was fired in order to avoid having a
firing on her employment record. It may even be that someone in the first line of supervision
considered her a quit, but the company never got that message.

Therefore, I reject Respondent’s contention that Madden resigned. The records are
conclusive on the point. Finally, as noted earlier, her status as a probationary employee is
irrelevant under the Act.

As Respondent does not challenge the calculation of backpay claimed for Madden, I
shall find the specification, as modified, to be accurate. Net backpay due Madden is $4,882.42.

Natasha McQueen née Warren

Natasha McQueen’s backpay period runs from August 13, 1997 until July 9, 2004. Her
specification (Appendix C-22) was amended at the hearing and the amended version has been
designated as G.C.Exh. 6. A comparison of that exhibit to the proposed backpay adjustments
offered by Respondent demonstrates that they are in full agreement from the 3rd quarter of 1997
to the 3rd quarter of 2001. This disagreement begins with the 4th quarter of 2001 and continues
through the end of the backpay period in 2004. In effect, the disagreement is over only
$3220.58. The remaining $36,552.64 is not in contest.

Respondent observes that it actually rehired McQueen in July 2001 and she returned to
work at that time, but shortly thereafter she quit during her retraining period in order to attend

22 At the time of her hire and discharge in 1997, Madden lived on West Imperial Highway in
southern Los Angeles. Her freeway commute to the Pomona yard would have been about 40
miles, through the heart of downtown Los Angeles.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
29
child custody hearings. Those hearings arose from a divorce and her ex-husband’s attempt to
seek custody. In response to her quit, the Regional Director has credited her interim earnings
account from that point on as if she had remained employed with First Transit through the
second offer of reinstatement in 2004.

I am of the view that Respondent has the better argument here. When McQueen sought
work from Respondent in July 2001 and Respondent put her on the track to her old job, its duty
of offering reinstatement was satisfied. The net backpay for those quarters is the difference
between what she was credited with versus what she would have been earning had she never
been fired.

However, it is clear that she would have quit during the child custody dispute and ended
her employment at that point, just as she actually did. This is simply an application of the
hazards of living rule noted earlier. American Manufacturing Co. of Texas, supra. Accordingly, I
find that the quit terminated Respondent’s backpay obligation with respect to McQueen.
Therefore, McQueen is entitled to the amount of net backpay not in dispute, i.e., $36,552.64.

Leo Mitchell

The specification for Leo Mitchell alleges that his backpay period begins on August 23,
1997 and ends on January 23, 2002. However, due to his employment history, it seeks only a
total of $951.01 net backpay for the first two quarters of the period, the 3rd and 4th quarters of
1997, where his interim earnings did not exceed his gross backpay. Respondent asserts that
Mitchell is not entitled even to that amount because he was not a victim of the unlawfully
imposed attendance policy.

Mitchell testified that he really couldn’t remember why he was discharged, but recalled
that shortly before his discharge he had declined to accept an additional route. He said:

Q By Mr. SILVERSTEIN: Now shortly before you left Ryder/ATE you refused to take an
additional route?
A [Witness MITCHELL] Yes.
Q You just didn't want to do that; right?
A No.
Q And it is your belief that that was related to the reason you left Ryder/ATE?
A That may have been one reason.
Q Was there any other reason?
A I don't know, there just seemed to be a lot of stuff around there at that time and maybe they
were just angry and taking it out on the drivers.
* * *
Q By Ms. McNEILL: Mr. Mitchell, were you terminated from Ryder/ATE after receiving
[attendance] points?
A Maybe on their behalf, but I was there every day that they wanted me to be there.
Q Do you recall why you were terminated?
A I really don't.

Two employee change forms from Mitchell’s personnel file are in evidence. Mitchell
Exh. 1 appears to be a photocopy of an older version, written upon by supervision to show the
termination and the reason for it. It is actually signed by a manager on September 4, 1997. The
second is the same document after being updated in the computer. Mitchell Exh. 2.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
30
The first contains the handwritten entries showing that Mitchell had been ‘terminat[ed]’,
on August 22, 1997 for ‘D2’ reasons and that he was not eligible for rehire. The codes key,
found in G.C.Exh. 4, shows that ‘D2’ is an invocation of the ‘attendance/tardiness’ rule.
Accordingly, based on Ryder/ATE’s own records, I find that it did discharge Mitchell under the
wrongly imposed policy, that Mitchell has properly been deemed a victim of the policy and that
he is entitled to the backpay set forth in Appendix C-23, $951.01.

Tom Montoya

The dispute concerning Tom Montoya principally arises from Respondent’s contention
that he was not fired because of the attendance point system, but that he had abandoned his
job. Alternatively, assuming that he was fired under the attendance policy, Respondent argues
that he was fired for misconduct by an interim employer and that its backpay obligation to
Montoya ended at that point.

The backpay specification, Appendix C-24, alleges that Montoya’s backpay period
begins on December 3, 1997 and ends on February 1, 2002 when Respondent reinstated him.
The total net backpay claim is only $9,296.07 for the entire 4-½ year period. He had substantial
interim earnings throughout that time frame. Indeed, he was able to find work almost
immediately after his discharge.

Montoya, contrary to Respondent’s contention, testified that he had been discharged
because of the attendance policy point system. The Ryder/ATE employee change slip
(Montoya Exh. 2) has no code explaining the reason for the action. It does have boxes checked
indicating that he was not eligible for rehire and that no exit interview was conducted. It was
printed on December 20, 1997 and shows that Montoya’s last day of work was December 2.
That date is actually the day Ryder/ATE’s Operations Manager Laurie Dobson wrote a letter
(Montoya Exh. 1) advising him of the discharge. The letter explains that it has been written
because they could not reach him at the phone number Dobson said was on file, listing a phone
number (partially redacted here for security purposes), the last four digits of which are 3079.
One wonders whether Dobson had a correct number because the employee change slip, while
it shows the same mailing address as the letter, contains a phone number with the same area
code, but with a different prefix and the last four digits 4530. Montoya stated that the address
was that of his mother and that he had never seen the letter before it was shown to him at the
hearing. Assuming it was his mother’s address, it is, nonetheless, the address which he gave
the Company as his home. 23

The letter does reference Respondent’s contention that Montoya had abandoned his job,
sometime after having driven a bus on November 15, 1997, a Saturday. It also asserts that
Montoya had requested to be changed to part-time employment, but he had not checked in with
the dispatcher for assignments as requested. Because of that failure, Dobson advised Montoya
that he was being discharged because of ‘job abandonment.’

Regarding the part-time issue, Montoya said he had been asked to switch to part-time
and had willingly agreed to work weekends. He gave the following testimony:

23 The letter’s authenticity is not in question; furthermore, the cc: listings show a copy was
sent to the Union. It is fair to presume that it was sent through the regular mail and received,
despite Montoya’s denial, even though the writer, Dobson, was not called as a witness. It was
received in evidence without objection.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
31
Q By Mr. SILVERSTEIN: Mr. Montoya, shortly before you left the employment of First Transit
in December of 1997, did you request to go on part-time status with First Transit?
A [Witness MONTOYA] I don't recall that at all.
Q You don't recall that?
A No, sir. I don't recall it.
Q You don't recall asking if you could work just weekends, and no longer have weekday shifts?
A I was asked if I -- if I would consider working weekends, because they had a surplus of
drivers and I was new there, basically.
Q And what was your response to that?
A I go, "Oh, okay." I mean, if it is for the good of the Company, sure.
Q So, your testimony is that you actually agreed to be reduced to a part-time schedule?
A Yes, because they had asked me, because they had surplus of drivers, and I was new, if I
would consider working weekends only.
* * *
Q . . . . So, what you are saying is that it is possible you might not have showed up for some of
your work shifts, right?
A I am sure I called in, because I am very conscientious about that. I called in; they told me,
"No, you don't got nothing," and then I come in on Monday and they ask, "Where were you
at this weekend," or they ask me next weekend, "Where are you at?" I go, "I called in."
Q Well, looking at this letter, and go ahead and take a moment to look at it --
A I read it.
Q -- but from reading this letter it looks like you didn't show up the weekend of November 15th
or any time thereafter.
A I must have [acquired] all of the points. They probably -- . . . terminated me.
* * *
Q By Mr. SILVERSTEIN: You don't know if you acquired any points for this, do you?
A I am sure I did, because they were pretty strict about giving you points.
Q Do you know the difference between receiving points for attendance violations and
abandoning your job?
A What do you mean "abandoning your job?" Not showing up, right?
Q Correct.
A That is not in my nature, not to show up. I always show up.
Q And I appreciate that, Mr. Montoya, and I am not suggesting that it is...
A Right.
Q But, the question is, I am asking you if you can appreciate the difference in earning points
under the attendance policy, and abandoning your job, and job abandonment as a basis for
termination?
A No, I would never abandon my job. I like this job too much. I love this job. I would never
abandon my job like that.
* * *
Q Do you have any recall whatsoever, that you came to work at First Transit after November
15th, 1997?
A No, sir, I got no recall. That was seven years ago. I got no idea.
Q So you don't know one way or the other.
A It was just so long ago; that is what it is. I can't recall these dates and stuff.
Q Mr. Montoya, since you can't recall, isn't it possible then, that you didn't come to work during
that time period, and that the Company terminated you for job abandonment?
A No, it is not possible, sir.
Q It is not possible?
A No, it is not possible. It is not in my nature to do that. I would not do that. I would not do
that.
* * *

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
32
Q When did you first -- if your last day of employment at First Transit was December 2nd, and
your first day of employment at Waste Management was December 6th, when did you first
contact Waste Management?
A I got hired actually the same day that I applied, so December 6th, I -- I went over there and I
got hired the same day. It didn't take me long to find a job.
Q Well, I am a little confused...If you never received this letter, how did you know that you had
been terminated from First Transit and that you needed to find a new job?
A I don't know if I was terminated or not. I have no idea, sir.
Q Isn't it true that no one ever told you that you were terminated, because you had pointed out
on the system –
A No, I was told that I got pointed out.
Q Who told you that?
A Laurie -- I believe her name was Laurie back then.
Q Laurie?
A Yes.
Q Do you have a last name?
A She is right here. [Pointing to Montoya Exh. 1] Laurie Dobson, Operations Manager.

Based on Montoya’s testimony, I am obligated to make several findings favoring
Respondent’s view. First, he did agree to work weekends on a part-time basis, whether he
volunteered for his own reasons or whether he was asked to do so. That necessarily meant a
reduction in his income. Not only did he testify to it, the letter says his last day of work was on a
weekend day, Saturday, November 15, 1997.

He also concedes that he was obligated to call the dispatcher to learn when he was
needed, simultaneously conceding that his schedule was irregular and that he needed to be in
touch. He asserts that he did communicate with the dispatcher, but also says he was not given
a run, only to be asked the following Monday where had he been, why hadn’t he come in. He
says he responded that he had called in.

From that, he assumed that he had been given attendance points, since he apparently
was aware of the strict manner in which points were assessed. However, as a part-time
weekend worker, it is not clear to me that attendance points would be issued in the same
fashion. His was an ad hoc sort of arrangement, so points shouldn’t have been issued unless
he had agreed to a run.

Then, although he claims he had never seen the discharge letter, he also testified that
he was hired by Waste Management as a trash truck driver on the same day he applied,
December 6, only 4 days after the letter was sent. That confluence of circumstances suggests
to me that he did receive Montoya Exh. 1 shortly after it was sent and immediately set out to
obtain a new job. It also means that his recollection is untrustworthy or selective.

In the circumstances, I am unwilling to credit Montoya’s testimony that he never received
the letter. Indeed, it is more plausible that he became resentful of the reduced hours offered to
him and that he took a cavalier approach to calling the dispatcher. This recklessness resulted in
his missing enough calls that the dispatcher gave up on him and reported that he was not able
to rely on him in during the 2 weeks before his discharge.

Therefore, I find that Montoya was discharged for reasons unrelated to the unlawfully
imposed attendance program. He is therefore not entitled to any backpay under the Board’s
order. The specification applicable to him, Appendix C-24, will be dismissed.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
33
Cindy O’Neal

Cindy O’Neal’s situation is different from most of the others. She was not fired as a
result of acquiring too many points under the unlawfully imposed attendance program. She
resigned when faced with the probability that she would shortly be fired. As a result, the
General Counsel asserts she was constructively discharged.

O’Neal was hired as a bus driver in December 1998 and her last day of work was
June 30, 1999, a period of slightly over 6 months. In May and June, in rapid succession, she
acquired the attendance points which put her at risk under the attendance program. She was
absent on May 18, 27 and 29, June 8 and, apparently, June 22. On June 25, O’Neal’s
supervisor Beth Randa counseled her about the situation, observing that O’Neal had
accumulated eight of the ten points which would cause her discharge. See O’Neal Exh. 2. It
may well be that the supervisor was then unaware of the June 22 absence, which put O’Neal at
ten, not eight points. Shortly thereafter the situation came to its head.

O’Neal testified:

Q By Mr. SILVERSTEIN: Now Ms. O'Neal, [. . . ] why did your employment at Ryder/ATE end?
A [Witness O’NEAL] I got a ten-point suspension?
Q Didn't you resign from the company, though?
A I had already got the ten points and [Laurie Dobson] said I was going to be fired anyway.
Q So you were given the option to resign and you took it?
A Right, rather than get fired.* * * . . . but I intended on quitting if I hadn't got those ten
points.

Rather clearly, O’Neal was between a rock and a hard place. Still, she was given the
option to resign rather than suffer a discharge, an option she was going to exercise regardless
of what happened. In the circumstances presented here, I am unable to conclude that O’Neal
was constructively discharged and qualifies for backpay under the terms of the Board’s order.

There are two issues presented here. The first is that the General Counsel’s theory of
backpay entitlement is based on an unfair labor practice which has never been alleged and
which the General Counsel has never really sought to prove. Instead, the General Counsel
simply lumped this employee in with the others who were actually discharged, and seeks to
have her treated the same way. Second, the doctrine of constructive discharge, normally seen
under §8(a)(3), requires two elements: first, that the burden being imposed on the employee
must cause a change in working conditions so difficult or unpleasant as to force the employee to
resign; 24 and second, that the burden was imposed because of the employee’s union activities.
See Crystal Princeton Refining Co., 222 NLRB 1068 (1976).

This case arises not under §8(a)(3), but §8(a)(5) as a unilateral change in wages, hour
and terms and conditions of employment. And clearly the Board found, and the court agreed,
that Ryder/ATE had breached its bargaining obligation to the Union when it unilaterally, and
without notice, modified its attendance rules. Yet these attendance rules, had they been
adopted after meeting the required obligations of collective bargaining, are not in and of

24 In some fact patterns this requirement can be characterized as forcing the employee to
make a Hobson’s choice, either quit or abandon one’s §7 rights. See, e.g., Goodless Electric
Co., 321 NLRB 64, 67-68 (1996); Control Services, 303 NLRB 481, 485 (1991). That choice is
not presented in this fact pattern.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
34
themselves onerous. Their only aim was to get drivers to work on time so the schedules would
run on time. And, it is a given that an employer can require employees to come to work on time,
even if he has to bargain with the employees’ representative to establish the rules governing the
penalties for failing to comply. Therefore, requiring any of these employees to come to work on
time is far from being regarded as burdensome. It was not onerous at all; in fact it was a normal
duty of employment.

Under that analysis, O’Neal had the duty of coming to work on time; when she
discovered she was unable to meet that duty, rather than allowing herself to be fired, she simply
accepted responsibility for her own shortcomings and resigned. Cf. Kentucky River Medical
Center, 340 NLRB No. 71 (2003), slip op. at 65-66 (Taulbee) (discriminatory warnings in
violation of §8(a)(1) not sufficient provocation to warrant employee abandoning work, i.e.,
effectively resigning job). Indeed, O’Neal’s resignation can easily be seen as her own act of
unexpected supervention. What Respondent might have done had she not resigned was
rendered not cognizable upon that event. 25 Therefore, the General Counsel has not offered
sufficient evidence to meet the first element of a constructive discharge. Having failed to meet
that initial burden, the backpay specification relating to O’Neal will be dismissed.

Marta Perez

Marta Perez was a bus driver for Ryder/ATE from late March 1997 until her discharge for
breach of the unlawfully imposed attendance rules on June 11, 1998. Her backpay period runs
from June 12, 1998 to January 23, 2002 when Respondent offered her reinstatement which she
declined. Appendix C-28 seeks a net backpay sum of $23,196.63. This includes a claim for
$13,151.36 for the four quarters of 2000. As will be seen, the 2000 figures require significant
adjustment.

Almost immediately after Ryder/ATE discharged Perez, she obtained a bus driving job
with Ampco System Parking at its operation at the Ontario International Airport, not far from her
home. She remained employed there for about a year and a half. She lost that job in early
2000 when she failed to properly engage the parking brake while she attended to a minor
medical issue. The bus rolled into a parked car. She was discharged because it was the
second accident in which she had been involved and the company’s policy was to discharge
any driver with two accidents, even though the incident caused no damage. (Indeed, her first
accident did not involve any negligence on her part.) This does not qualify as a deliberate effort
to remove herself from the job market by engaging in an act of gross misconduct.

At that point she decided that she would become a stay-at-home mother to her children.
The evidence shows that she stayed out of the job market for about 10 months. 26 The Social
Security Administration report shows that during the year 2000, she earned $4,075.50, one-
fourth of which the compliance officer allocated to each quarter for that year. In November 2000
she began searching for work and on December 5 obtained a job with the Walgreen Company
where she still works. Her Walgreen interim earnings for the last quarter of 2000 was $475.00.

25 Cf., Electrical Workers (IBEW), Local 1701 (Dynalectric Company), 252 NLRB 820, 829
(1980); P.G. Berland Paint City, 199 NLRB 927, 927-928 (1972); and Klate Holt Co., 161 NLRB
1606, 1612 (1966).
26 The parties are in agreement that her testimony that she stayed out of the job market for a
year and 10 months is mistaken. That conclusion is supported by the Social Security
Administration records. Perez Exh. 1. See also the colloquy between counsel and myself at
p. 1157 ff.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
35
The backpay specification, Appendix C-28, requires some adjustments to account for the
anomalies—her withdrawal from the job market, the misallocation of the 2000 Ampco earnings
and the Walgreen earnings. The corrected allocations are shown in the chart below.

Year/Quarter Gross Backpay Interim Earnings Net backpay
2000 Q1 27 4425.48 3779.53 645.95
2000 Q2 28 340.42 296.01 44.41
2000 Q3 0 0 0
2000 Q4 29 1021.26 475.00 546.26
1236.62 Net backpay/2000

When added to the net backpay for other quarters in the backpay period, $9845.29, this
$1236.62 adjustment results in a total net backpay claim of $11,081.91.

Respondent’s argument, that when Perez withdrew from the job market to be a stay-at-
home mother she had cut off liability altogether, is rejected. Tolling the gross backpay liability
for the affected quarters, as I have here, is the appropriate course.

Cheryl Ramirez

Respondent, in its brief, has advised that it does not dispute the backpay calculation for
Cheryl Ramirez. Accordingly, the net backpay set forth in Appendix C-29 is found to be
appropriate: $23,487.85.

Joyce Robinson

As alleged in the backpay specification, Appendix C-30, Robinson’s backpay begins on
May 19, 1997 and ends on January 23, 2002. At the time of her discharge, Robinson had just
completed her 120-day probationary period, having worked for only about 4-½ months. The
threshold issue presented here is Respondent’s defense based upon her testimony at the
hearing that she had some difficulty finding interim employment because “I was limited because
of my record, too, [I] got a prior record.” She went on to state that about 12 years before
(approximately 1992), she was convicted of second degree robbery. This testimony was a
surprise, as no one was aware of this conviction. When Respondent inquired, she said that on
her job application form she had stated ‘yes’ when asked if she had any prior felonies. 30 That

Continued
27 The interim earning figure is assumed to be the same as in the 4th quarter of 1999.
28 These figures represent the first week’s work in the 2nd quarter
29 The gross backpay figure covers 3 weeks–two in November and one in December
searching for work.
30 Q By Mr. SILVERSTEIN: So, when you fill out an application and it asks, if you have had
any prior felonies, you have to answer, yes. Right?
A [Witness ROBINSON] Yeah.
Q Okay. Were you asked that question when you were hired, at Ryder/ATE?
A Yeah.
Ms. MCNEILL: Objection. She was hired.
JUDGE KENNEDY: She was hired and she answered it.
Mr. SILVERSTEIN: I understand.
JUDGE KENNEDY: Okay.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
36
_________________________
testimony was untrue. Her job application, in evidence as R.Exh. 8, asks: “Have you ever been
convicted of a felony? (Note: A felony conviction is not an absolute bar to employment.)” She
checked the ‘no’ box and left blank the ‘If yes, please explain’ box.

Near the end of the hearing, Salvador Garcia, now the assistant general manager for
First Transit, but then a manager for Ryder/ATE, testified that he was not aware that Robinson
had been convicted of second degree robbery. He testified that had her conviction been known
at the time she applied for the job, in his opinion she would not have been hired, for Ryder/ATE
had a policy of not hiring felons. Furthermore, he opined, she would not have been hired
because of, using counsel’s words, “résumé fraud,” i.e., that she had lied when filling out the job
application form.

On January 26, 2005, after the close of the hearing, Respondent filed a motion to reopen
the record to receive a hiring investigation report performed by a pre-employment screening
company which had not uncovered the robbery conviction. The motion is denied for two
reasons. First, the document cannot be authenticated without hearing a witness, and I am loath
to take that step since, second, the document, even if authenticated, would not significantly
enhance the record.

As matters now stand, it is clear that Robinson was convicted of a very serious felony
and did not disclose it at the time of her hire. Furthermore, there is a substantial likelihood that
she did not tell me the truth either. I recognize that a great deal of time has passed since she
filled out the form in 1997, and that she was not shown the application at the time she testified,
undoubtedly because her testimony on the subject was unexpected. She may simply have
forgotten what she did, but I tend to think that is not so. Persons who have convictions on their
record take extra thought when confronted with a question about them. I find she knew it was
untrue at the time she filled it out; I am reasonably certain she still knew it to be false when she
gave her testimony.

This puts the matter into the category of cases exemplified by ABF Freight System v.
NLRB, 510 U.S. 317 (1994); John Cuneo, Inc., 298 NLRB 856 (1990); GTE Lenkurt, Inc., 204
NLRB 921 (1973). These are all cases involving falsehoods connected to the hiring/tenure
process. There is also one feature which is identical to that set forth in Hoffman Plastic
Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)—the fact that the pertinent evidence did not
surface until the compliance hearing. Also of general pertinence is McKennon v. Nashville
Banner, 513 U.S. 352 (1995), a Title VII case, concerning after-acquired evidence.

These cases all address the question of appropriate remedy: Is a discharged employee
who falsified a critical fact in order to get (or stay) employed, but who has subsequently
acquired protection under §7, entitled to the standard remedy of reinstatement with backpay?

In Lenkurt, Administrative Law Judge Jerrold Shapiro observed that employee
Maldonado’s name had been on a prounion employee list which had been supplied to
management, and a prima facie §8(a)(3) case had been otherwise made out. Maldonado,
however, had falsified his employment application in order to conceal a conviction, suspended
sentence and a sentence of 3-years probation for grand theft. When discharged, he had
recently passed his 90-day employment probation period. The employer, actively looking for
Q By Mr. SILVERSTEIN: And what did you put down when you were asked that question, at
Ryder/ATE?
A Yes.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
37
reasons to fire union activists, had plotted against Maldonado to make him late for work so that
he would have an excuse for discharging him. The employer then received a tip about
Maldonado’s conviction and retained a professional investigating company to look into the
matter. When the firm reported the conviction to management, Maldonado was promptly fired
and told it was for falsifying his application. The judge, affirmed by the Board, and citing P.G.
Berland Paint City and Klate Holt, both supra, dismissed the complaint as it related to
Maldonado, saying:

I am motivated by several factors, primarily that the misconduct of Maldonado was
serious and substantial, that the Company's printed rules state that it is a dischargeable
offense, that the Respondent in its employment application clearly states that falsification
is sufficient grounds for immediate discharge, and that there is no showing of disparate
treatment. The Company welcomed, and was looking for, an excuse to discharge
Maldonado, and the manner in which it documented Maldonado's misconduct reveals its
awareness that the legality of the discharge was open to question, but on balance I
conclude that Maldonado's objectionable conduct caused his discharge, and would have
done so in the absence of any union activity.” 204 NLRB 921 at 982.

In Cuneo, a compliance case on remand from the D.C. Circuit Court of Appeals, the
Board seemed to announce a more nuanced approach to false applications:

Although we agree with the judge's conclusion that the Respondent would not have
hired Brite had it known of his misconduct in falsifying his employment application, we do
not find that this misconduct automatically bars an award of backpay. Rather, we limit
Brite's right to backpay to the date the Respondent acquired knowledge of Brite's
misconduct, consistent with the remedy approved by the Board in Axelson, Inc., [285
NLRB 862, 866 (1977)], a strike misconduct case.
* * *
The record shows that the Respondent hired Brite as a permanent employee and that
but for the Respondent's unlawful refusal to reinstate Brite, the Respondent would have
continued to employ Brite at least until the Respondent became aware of Brite's false
statement concerning his employment history on his job application. The record also
shows that the Respondent had a policy of not hiring applicants who misstate their
employment background on their applications. In view of this policy, the Respondent
probably would not have retained Brite after it learned of his misstatement. Under these
circumstances, we would be granting an undue windfall to Brite if we failed to take into
account his misconduct and granted him reinstatement and full backpay. On the other
hand, relieving the Respondent of all backpay liability, including that for the period when
the Respondent had no knowledge of Brite's misstatement and had no lawful reason to
fire him, would provide an undue windfall for the Respondent. Accordingly, as we have
done in similar cases, we shall terminate Brite's backpay on the date that the
Respondent first acquired knowledge of Brite's falsification. See East Island Swiss
Products, 220 NLRB 175 (1975); A. A. Superior Ambulance, 292 NLRB 835 fn. 7
(1989). (Internal footnotes omitted.) 298 NLRB 856-57.

See also Marshall Durbin Poultry Co., 310 NLRB 68, 70 (1993) which follows the Cuneo
rule cutting backpay off on the date the employer learns of the misconduct.

Neither Cuneo nor Marshall Durbin involved the falsification and concealment of a
criminal matter. In Cuneo, the employee had misrepresented his prior employment record and

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
38
there was no evidence that he had given false testimony; in Marshall Durbin, the individual’s
transgression concerned sexual harassment. In both cases the discovery occurred before the
backpay period was to have ended.

In ABF Freight System, supra, the Supreme Court was faced with an employee who,
although engaging in activity protected by the Act, had lied to his employer about being late to
work, and lied about it again to the Administrative Law Judge. The Board (304 NLRB 585,
Member Cracraft concurring) had nonetheless ordered the employee reinstated with backpay
and the Court of Appeals concurred. Against the employer’s passionate argument that perjurers
not be rewarded, the Supreme Court said:

False testimony in a formal proceeding is intolerable. We must neither reward nor
condone such a "flagrant affront" to the truthseeking function of adversary
proceedings. See United States v. Mandujano, 425 U.S. 564, 576 -577 (1976).
See also United States v. Knox, 396 U.S. 77 (1969); Bryson v. United States,
396 U.S. 64 (1969); Dennis v. United States, 384 U.S. 855 (1966); Kay v. United
States, 303 U.S. 1 (1938); United States v. Kapp, 302 U.S. 214 (1937); Glickstein
v. United States, 222 U.S. 139, 141-142 (1911). If knowingly exploited by a
criminal prosecutor, such wrongdoing is so "inconsistent with the rudimentary
demands of justice" that it can vitiate a judgment even after it has become final.
Mooney v. Holohan, 294 U.S. 103, 112 (1935). In any proceeding, whether
judicial or administrative, deliberate falsehoods "well may affect the dearest
concerns of the parties before a tribunal," United States v. Norris, 300 U.S. 564,
574 (1937), and may put the factfinder and parties "to the disadvantage,
hindrance, and delay of ultimately extracting the truth by cross-examination, by
extraneous investigation or other collateral means." Ibid. Perjury should be
severely sanctioned in appropriate cases.
* * *
When Congress expressly delegates to an administrative agency the authority to
make specific policy determinations, courts must give the agency's decision
controlling weight unless it is "arbitrary, capricious, or manifestly contrary to the
statute." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 844 (1984). Because this case involves that kind of express delegation,
the Board's views merit the greatest deference. This has been our consistent
appraisal of the Board's remedial authority throughout its long history of
administering the Act. [fn. omitted] As we explained over a half century ago:
"Because the relation of remedy to policy is peculiarly a matter for
administrative competence, courts must not enter the allowable area of
the Board's discretion, and must guard against the danger of sliding
unconsciously from the narrow confines of law into the more spacious
domain of policy." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194
(1941).
Notwithstanding our concern about the seriousness of Manso's ill-advised
decision to repeat under oath his false excuse for tardiness, we cannot say that
the Board's remedial order in this case was an abuse of its broad discretion, or
that it was obligated to adopt a rigid rule that would foreclose relief in all
comparable cases. Nor can we fault the Board's conclusions that Manso's reason
for being late to work was ultimately irrelevant to whether antiunion animus
actually motivated his discharge, and that ordering effective relief in a case of this
character promotes a vital public interest.
Notably, the ALJ refused to credit the testimony of several ABF witnesses, see,

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
39

e.g., 304 NLRB, at 598, and the Board affirmed those credibility findings, id., at
585. The unfairness of sanctioning Manso while indirectly rewarding those
witnesses' lack of candor is obvious. Moreover, the rule ABF advocates might
force the Board to divert its attention from its primary mission and devote
unnecessary time and energy to resolving collateral disputes about credibility. Its
decision to rely on "other civil and criminal remedies" for false testimony, cf. St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 521 (1993), rather than a
categorical exception to the familiar remedy of reinstatement, is well within its
broad discretion.
510 U.S. 317 at 323-325.

None of these cases definitively deals with the problem presented here. In some cases,
such as East Island Swiss Products, 220 NLRB 175, 179 (1975) and A. A. Superior Ambulance
Service, 292 NLRB 835 fn. 7 (1989), and Cuneo, supra, the Board has chosen to cut off
backpay at the time when the Employer first learned of the misconduct which would have barred
the employee from being hired in the first place. That remedy would be hollow here, since
Robinson’s falsity was not discovered during her short employment and was not revealed until 5
years backpay had been accumulated, plus another 2 years which had passed as the
compliance proceedings matured. Applying that analysis would simply reward Robinson for
lying her way into the job 7-½ years ago.

In other cases, the Board has observed that where an employee has obtained his job
through the use of a false statement in his application, it is not repugnant to the purposes and
policies of the Act to order less than reinstatement with backpay. Ohio Ferro Alloys, 209 NLRB
577 (1974) (citing Southern Airway Company, 124 NLRB 749, 752 (1959) and W. Kelly Gregory,
207 NLRB 654 (1973)). In Gregory, the Board, after finding the driver in question had falsified
his application regarding previous discharges and a ‘drinking problem’, concluded that he would
not have been hired had he answered truthfully. It denied the driver reinstatement (and,
apparently, backpay, though backpay is not specifically mentioned). Gregory, however, was
overruled on that very point by Cuneo, supra.

As Cuneo observes, entirely denying backpay may be seen as an undeserved benefit for
an employer who has an obligation to satisfy the public interest in remedying the unfair labor
practice which has been found. At the same time, the Supreme Court’s concern about
rewarding false testimony, set forth in ABF Freight, supra, commands attention and cannot be
ignored. 31 Indeed, even though ABF Freight itself approved the Board’s reinstatement and
backpay order, the Board there at least had an opportunity to hear a fully litigated case of
discrimination for it did not arise for the first time at the compliance stage. In ABF Freight, the
Board found the employee’s misbehavior to be merely an excuse for the discrimination visited
upon his union organizing efforts. The Board’s choice of remedy is therefore perfectly
understandable, and the courts reviewing the remedy could see that the employee’s
prevarications were of secondary importance, and not based upon the employee’s qualifications
for initial hire. That circumstance may be easily contrasted to Robinson who actively misled
Ryder/ATE into hiring her by concealing her disqualifying conviction and who later compounded
the false statements before me.

31 The Board will not reward false testimony in backpay cases where the discriminatee has
deliberately concealed interim earnings. Ad Art, 280 NLRB 985 (1986).

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
40

Therefore, I must construe Cuneo in light of ABF Freight, and strike a balance between
the two extremes. Cuneo provided a limited backpay remedy which, due to timing factors, does
not lend itself to Robinson’s circumstances. In Cuneo, the Board cut off backpay as of the
moment it found that the Employer learned of the employee’s disqualifying background.
Application of the rule in the instant case, however, would fail to provide any balance because
Robinson would then be entitled to the full backpay set forth in the specification since
Respondent did not learn of her disqualifying background until the backpay hearing, well after
the backpay period had ended. Such a remedy would reward not only her false application, but
her false testimony as well and, in my opinion, offends ABF Freight.

It is clear to me that Robinson would not have been hired had she revealed her second
degree robbery conviction to Ryder/ATE at the time of her hire. I reach that conclusion because
even though not all convictions would bar an applicant from employment, Ryder/ATE, as a
common carrier, has a heightened duty of care to protect its passengers. California Civil Code
§2100. 32 It would no doubt be subject to liability for negligently hiring an employee if it
knowingly hired a violent felon who later committed an intentional tort or crime while on duty.
And, while it may well be that Robinson does not constitute that risk, or that she may no longer
offer that risk, by lying on her application Ryder/ATE never had the opportunity to assess or vet
her regarding the question. I therefore conclude that Ryder/ATE would not have hired her if it
had known the facts. She was a felon who had falsely concealed her background at the time of
her hire. 33

Therefore, I will issue a limited backpay remedy for Robinson. The remedy will provide
backpay for a reasonable amount of time deemed to equal the time it would have taken for
Ryder/ATE or Respondent to have learned of her criminal background and her deception about
it. To be sure, such a determination is only an estimate, but the public interest to be satisfied is
of more importance than her private loss.34 Accordingly, I find it reasonable to conclude that her
backpay period should be only 1 year in length. Therefore, I conclude that Robinson’s backpay
period begins on May 19, 1997 and ends on May 18, 1998. Her backpay is calculated
according to the following chart:
32 The statute states: “A carrier of persons for reward must use the utmost care and
diligence for their safe carriage, must provide everything necessary for that purpose, and must
exercise to that end a reasonable degree of skill.” See also Allen v. Matson Navigation Co., 255
F.2d 273 (9th Cir. 1958), applying this statute.
33 In reaching this conclusion, I have followed the same methodology seen in Cuneo and
Gregory which was not reversed on this point.
34 In Clayton Willard Sales, 126 NLRB 1325, 13216-27 (1960), the Board said: “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.” [Internal
footnotes omitted.]

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
41

Year/Quarter Gross Backpay Interim Earnings Net backpay
1997 Q2 2016.96 0 2016.96
1997 Q3 4370.08 0 4370.08
1997 Q4 4643.00 0 4643.00
1998 Q1 4779.78 0 4779.78
1998 Q2 35 2389.89 3037.20 0
15,809.82 Total Net backpay

For the backpay quarters provided here, Respondent makes no significant contention
that Robinson failed in her duty to mitigate. Therefore, the revised calculation will stand.
Robinson’s net backpay is $15,809.82.

Deborah Sleets

Deborah Sleets is the subject of a modified backpay specification submitted by the
General Counsel. The modification is based on Sleets’s testimony that she removed herself
from the job market at the end of 1999. As modified, the backpay period begins on May 20,
1997 and terminates with the last quarter of 1999.

Respondent makes three principal arguments. First, it asserts that Sleets was a
probationary employee having no reinstatement right. Second, she had failed to report a felony
conviction on her job application. And, third, she unjustifiably quit an interim employer, Roesch
Transit, and thereby forewent about $17,000 in interim earnings.

As for Sleets being a probationary employee, I find the argument has no merit as
previously discussed. As for the failure to report the felony, the evidence is somewhat thin on
the point. Sleets was not directly asked about any unreported felony. She only knew that an
interim employer, Laidlaw at El Monte, had let her go after a short time, saying there was a
problem with her fingerprints.

In her Ryder/ATE application form, where she sought work as a dispatcher, not a
driver,36 she stated that she had been convicted of some kind of felony relating to a child
custody matter after having been beaten by her husband. She did not say when that occurred,
nor did she admit to exactly what crime she was convicted. On the record, counsel referred to it
as domestic violence, but that does not adequately describe it. Even so, the conviction
apparently did not bar her from becoming a Ryder/ATE dispatcher. Indeed, Assistant General
Manager Salvador Garcia said that crimes of that nature were given consideration, and were not
always a bar.

However, when Garcia began to testify about Sleets, Respondent’s counsel made an
offer of proof concerning a different conviction which counsel represented as having occurred in
1987. This, he said, was for carrying a concealed weapon, a loaded firearm ‘filed at the Culver
City, California Courthouse, Case No. CC-87M01019-01.’ At the same time, he represented

35 The figures in this row are derived from calculating the weekly pay rate from the quarterly
figures set forth in Appendix C-30 and multiplying it by 6-½ weeks, the end of the revised
backpay period.
36 Sleets worked as a dispatcher only for a short time. She was a driver when she was
discharged.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
42

that he knew the domestic violence conviction occurred 2 years after that, in 1989. The General
Counsel counters that Sleets may have possessed the weapon to defend herself from the
abusive husband.

None of this, however, constitutes proper evidence. It was only an offer of proof and a
rejoinder. Unlike the Robinson situtation, no certified copy of the conviction was presented, but
more importantly, Sleets was never given the opportunity to say anything about the matter.
Furthermore, Garcia could only testify that in his opinion, had he known of the firearm conviction
at the time Sleets sought employment, she would not have been hired. I must regard Garcia’s
testimony here to be one of 20/20 hindsight.

Among other things, we cannot be sure of what crime(s) Sleets was convicted or when.
The record is too spare to make that determination. Sleets’s child custody matter may not even
have been a felony. She seems to think it was, because she checked the ‘yes’ box, but even
so, these are often only misdemeanors. Neither do we know their official disposition.
Convictions not resulting in physical injury are frequently abated in some fashion and later
expunged. (In California the procedure is commonly called ‘summary probation.’)37 Or, if it is a
juvenile offense, it may be sealed and the defendant may have no obligation to reveal it.38 Even
Respondent must concede that whatever the offenses, these incidents occurred 8-10 years
before her hire.

Frankly, this matter, unlike Robinson’s situation, does not appear to fall into the
disqualification-from-employment category. Robinson’s conviction was for robbery, a crime
against persons. Sleets’s crime, if the offer of proof were to be accepted, was a concealed
firearm. It does not appear to have been a crime against any person. Given the fact that
Ryder/ATE’s application form assured applicants that felonies were not automatic bars to
employment, it seems that there is at least some likelihood that she would have been hired
anyway. More importantly, Respondent’s unwillingness to confront Sleets over this matter
suggests it knew her explanation may well have undercut their argument. As things now stand,
Respondent has not provided sufficient proof that Sleets’s application was fraudulent.
Accordingly, Respondent’s argument is unpersuasive.

As for its last contention, that Sleets quit an interim employer without good reason, the
facts are fairly straightforward. Within 2 or 3 months of her discharge by Ryder/ATE, Sleets,
who lived in Ontario, began seeking work. She was initially hired by Laidlaw at its El Monte
yard, but was not retained due to the background check. Laidlaw did not give her any specific
information concerning the dismissal which she thought was curious, because she had earlier
worked for a Laidlaw operation in nearby Upland without any such issue arising. Thereafter,
she sought and obtained work with limited success through a temp agency, Apple One. She
then sought work in San Bernardino with Roesch Lines, a bus company contracted to a transit
district in that city. Roesch employed her without concern for her background (even though it is
well-known to be yet another Laidlaw subsidiary). At this point, Sleets determined that it was
best for her and her two small children to find less expensive lodgings and she moved to the
Victorville area though she continued to drive for Roesch. This involved a daily commute of
about 40 miles and proved to be too much of a hardship, given her status as the single mother
of two small children. She decided to seek work in the Victorville area instead, so she quit
Roesch.

37 See generally Cal. Penal Code §1203.4 (2004).
38 See generally Cal. Welf. & Inst. Code §1772 (2004).

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
43
Contrary to Respondent, I find that her quit was reasonable in the circumstances.
Indeed, she eventually sought comparable work from Forsythe Lines in the Victor Valley area.
Forsythe was a contractor to the public transit agency there. She also sought work with the City
of Victorville and a fast food restaurant. She was hired as a trainee by Forsythe but her training
officer told her she would not pass the test, so she decided that further pursuit was fruitless.
She participated in the GAIN program as a condition of public assistance; that program required
her to seek work. She also sought to make a living as a hairdresser working from her home.
She did have some income from social security due to the death of the father of one of her
children and had assistance under the Aid to Families with Dependent Children program, but
this does not seem to have deterred her from seeking to earn income from other sources.

Under these facts, I am unable to conclude that Sleets removed herself from the job
market until the end of 1999 as recognized by the General Counsel. Accordingly, I find that the
amended backpay specification, Appendix C-31, in the record as G.C.Exh. 12, is correct. Under
that specification, Sleets is entitled to the full amount, $41,495.64.

Daphne Thomas

Daphne Thomas’s backpay period begins on June 27, 1997 and ends on May 3, 2002.
During this period Thomas was unable to work during a pregnancy and the backpay
specification has accounted for this time by making appropriate adjustments for the November
1998-July 1999 time frame. Respondent contends that Thomas unnecessarily quit working for
an interim employer and therefore failed to properly mitigate the backpay claim.

The facts are straightforward. Shortly after Ryder/ATE fired Thomas for breaching the
illegally imposed attendance policy, her husband’s employer transferred him, on a temporary
basis, to a project in Tulare, California, a medium-sized city in the Central Valley with about
44,000 residents. It is located over 200 miles from Thomas’s home in Fontana. She testified
that had she found employment near home, she probably would have remained at home;
indeed, before leaving with her husband she had started to look for work near Fontana, signing
up with two temp agencies, an employment agency and registering with the EDD. The
remainder of her family continued to live in the Los Angeles area, but there was no reason for
her not to join him since his Tulare job was not permanent.

While in Tulare, the couple lived in a motel. There she applied for bus driving work at
Visalia Transit (located 15 miles from Tulare) and registered with the EDD in that area. Tulare
had its own transit system and she eventually obtained on-call driving work with that agency,
“Tulare Transit.”39 She continued to be in touch with her contacts in the Los Angeles area, and
as her husband’s job ended in Tulare, she utilized those contacts to arrange for immediate
employment with Laidlaw in El Monte in December 1997.

Respondent makes a technical argument regarding these facts. It asserts that the
General Counsel failed to adduce any evidence that Thomas’s decision to quit the Tulare
Transit job was reasonable and that therefore her backpay should be cut off as of the date of
her resignation from Tulare Transit.

39 There are two similarly named transit agencies in Tulare, the city-operated Tulare Transit
Express and the county-operated Tulare County Transit. Thomas was not as specific as she
might have been on the point.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
44
However, I find that the circumstances carry self-evident proof of its reasonableness.
Their home was in the Los Angeles area. When her husband’s short term job in Tulare ended,
they both expected to return to that home. Indeed, Respondent’s argument would have the
Board require Thomas to remain in Tulare while her husband returned to the family residence.
This argument borders on the silly.

She took the Laidlaw job with the idea that it would be permanent, but she was
terminated from Laidlaw after having a disagreement with a supervisor concerning the wearing
of earrings on the job. She had no attendance issues, but shortly after the disagreement, she
called in to advise she would be late for work that day. The supervisor told her if she could not
come on time, she couldn’t come at all. She was fired that day, even though it was her only
attendance transgression.

Respondent, as an addition to the Tulare quit argument, asserts here that Thomas did
not do enough to maintain her job and that backpay should end at this point if not stopped when
she quit the Tulare Transit job.

Again, I disagree. A backpay claimant is not barred from backpay unless she willfully
removes herself from interim employment by gross misconduct. Ryder Systems, supra.
Whether Laidlaw treated her fairly or not under its own employment system, it is clear that
Thomas engaged in nothing approaching gross misconduct. She had committed no attendance
violations until that day, and even then was not a ‘no call, no show’ absentee. Respondent’s
argument here is misplaced.

Thomas continued to seek and find employment throughout the remainder of her
backpay period. Taken as a whole, it is clear that she actively sought interim employment and,
for the most part, succeeded. Respondent has not demonstrated that the backpay calculation
for Thomas is unreasonable. Accordingly, I find that Thomas is entitled to backpay as
calculated in Appendix C-32. That figure is: $51,971.66.

James P. Thornton

Respondent has advised in its brief that it does not dispute the backpay for James P.
Thornton as set forth in Appendix C-33. Thornton’s backpay period begins on June 30, 1999
and ends on January 23, 2002 when he was reinstated. The specification sets his net backpay
at $27,152.49.

Brent Turner

Respondent has advised in its brief that it does not dispute the backpay for Brent Turner
as set forth in Appendix C-34. Turner’s backpay period begins June 7, 1997 and ends on May
3, 2002. The specification sets his net backpay at $34,571.76.

Maria Velasquez

Maria Velasquez was one of the named employees in the underlying unfair labor
practice proceeding and was found to be a victim of the illegally imposed attendance program.
Velasquez’s backpay period runs from December 6, 1997 to January 23, 2002. Her backpay
specification, Appendix C-36, has already accounted for some periods where she was not in the
job market due to school attendance, a disability due to a difficult pregnancy, and a decision to
withdraw from the job market to tend to her infant.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
45

Respondent preliminarily asserts that because Velasquez quit a job on October 17, 1998
with Cames Security after her pregnancy-related disability period ended, it is entitled to an
interim earnings offset at the Cames’s rate from that date until she obtained a higher interim
earnings rate. Clearly, however, her decision to quit was reasonable. The job, security monitor,
certainly was not equivalent to bus driving; moreover, it was a graveyard shift where she was
obligated to work alone. Still pregnant and feeling the residual effects of her previous
difficulties, she realized that if she were to fall ill, there would be no one around to help. Her
decision to quit that job was certainly reasonable. Even if Respondent’s argument were to be
accepted, it would only have applied to the remainder of the quarter since she chose not to work
during 1999, and it appears that the Cames’s rate would later be exceeded in quarters
beginning in 2000.

Respondent’s principal objection to the specification is its belief that beginning with the
1st quarter of 2000, Velasquez became a full-time student, attending classes at Mt. San Antonio
College as she began to realize that a bachelor’s degree was a realistic goal. She later
transferred to Cal Poly Pomona and at the time of the hearing, was on track to graduate with her
bachelor’s degree in December 2005.

In any event, in January 2000, supported by the GAIN welfare-to-work program,
Velasquez embarked upon her college career full-time. She had earlier demonstrated to the
GAIN program, as a part-time student beginning August 1999, that she was a good candidate
for support. As a result, she was enrolled in a work-study program which allowed her to be both
a student and an employee. Under the program, GAIN paid 75% of her wages at two different
jobs: Marcia’s Family Day Care Center (from 3 p.m. to 4 or 5 p.m.) and the Community College
Foundation which hired her as a tutor in the evenings. She went to school 20 hours per week
and worked the two jobs for a total of 20 more hours per week. This arrangement continued
until the semester ended in June. At that point the Community College Foundation hired her as
a regular employee. Until the end of her backpay period she continued as a tutor for the
Foundation, even becoming a master tutor as she completed her tenure at Mt. San Antonio
College. During the entire time, however, she still looked for work which she intended to fit into
her school schedule. 40 In February 2001, for example, she applied to the City of Pomona as a
dispatcher. She also maintained her Class B drivers license with passenger endorsement and
was on the lookout for driving jobs, usually to drive students on an overnight program. This did
not pan out.

I am of the view that Respondent’s argument concerning Velasquez is unpersuasive. It
asserts that beginning in January 2002, when she became a full-time student, she removed
herself from the job market and is entitled to a finding that her backpay period ended at that
time. I disagree. Respondent has not demonstrated that she removed herself from the job
market; indeed, she was able to find part-time work in the range of 20 hours per week (all of
which serves here as interim employment). Furthermore, she did seek work as a full-time
employee with the City of Pomona, but without success. Respondent’s argument is therefore
rejected. Cf. Lord Jim’s, 277 NLRB 1514, 1515 (1986) (backpay granted to full-time student
when she testified she could have continued to work hours comparable to those before the
discharge); Sargent Electric Company, 255 NLRB 121, 123 (1981) (a part-time student going to
school from 6-10 pm and working an 8-hour shift did not withdraw from the labor market).

40 Her connection to the GAIN program and to the community college gave her access to
child care support during this time frame.

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
46
Accordingly, I find the backpay specification set forth in Appendix C-36 to be an accurate
assessment of Velasquez’s net backpay: $32,141.06.

Michelle Woods

Respondent has advised in its brief that it cannot cite any specific instance where
Michelle Woods breached her duty to mitigate her backpay as set forth in Appendix C-37.
Accordingly, it concedes that the specification is correct. Woods’s backpay period begins on
June 3, 1997 and ends on January 23, 2002. The specification sets her net backpay at
$54,881.28.

Jana Farrage

Jana Farrage was scheduled to testify at several points during the hearing. She never
appeared and no explanation was really proffered; both counsel for the General Counsel and
Respondent were aware that it was unlikely she would come to the hearing. Nevertheless, the
parties have stipulated that her backpay was for a period of suspension, rather than a discharge
and that her backpay totals $372.58, as set forth in Appendix C-10.

Conclusion

The liquidated net backpay for each of the employees discussed here is set forth in the chart.
Name of Backpay Claimant Net Backpay
Clide Aaron 16,210.13
Patrice Benemie 33,300.77
Frances Carmona (Lemos) 49,747.27
Raymond Coletti 25,611.89
Robin Corral (Delgado) 29,399.59
Donald Duplessis 97,877.32
Pamela English (Potts) 11,902.56
Robert Giles 21,786.41
Cheryl Harris 29,228.08
Danielle Hasberry 26,953.66
Lonnell Horn 31,624.83
Mary Hyemingway 23,971.51
Lola Joyner 30,825.28
Elbert Kellem 43,479.83
Edwin Lear 33,076.57
Juanita Madden 4,882.42
Natasha McQueen née Warren 36,552.64
Leo Mitchell 951.01
Marta Perez 11,081.91
Cheryl Ramirez 23,487.85

JD(SF)-54-05

5

10

15

20

25

30

35

40

45
47
Joyce Robinson 15,809.82
Deborah Sleets 41,495.64
Daphne Thomas 51,971.66
James P. Thornton 27,152.49
Brent Turner 34,571.76
Maria Velasquez 32,141.06
Michelle Woods 54,881.28
Jana Farrage 372.58
Total Net Backpay

$840,347.82

Some loose ends remain. They must be left to further proceedings as necessary.
These include the stipulated omission of the missing or deceased claimants José Avalos
(deceased), Denny Benavides, Shawn Howell, Ike Johnson, Marcus Nelons, Valerie Pedraza
and Tyrice Turner. Furthermore, it should be understood that the total backpay figure shown
below does not include interest. The compliance office will calculate interest for each claimant
separately using the formula set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987)
and Florida Steel Corp., 231 NLRB 651 (1977).

Finally, the specification as it relates to Tom Montoya and Cindy O’Neal is DISMISSED.

The total backpay liquidated by this supplemental decision 41 is:

$840,347.82

James M. Kennedy
Administrative Law Judge

Dated: July 29, 2005

41 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusion and recommended Order shall, as provided in §102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)-54-05
Pomona, Calif.

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BRANCH OFFICE
SAN FRANCISCO, CALIFORNIA

FIRST TRANSIT, INC.,
Successor with Liability to
RYDER/ATE, INC.

and

WHOLESALE DELIVERY DRIVERS,
SALESPERSONS, INDUSTRIAL AND ALLIED
WORKERS, LOCAL 848, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL–CIO
Cases 21–CA–32146
21–CA–32285

SUPPLEMENTAL DECISION

James M. Kennedy
Administrative Law Judge

JD(SF)-54-05
Pomona, Calif.

Table of Contents

SUPPLEMENTAL DECISION .............................................................................................1
Statement of the Case..................................................................................................1
The Background ...........................................................................................................3
Clide Aaron............................................................................................................3
Patrice Benemie ....................................................................................................5
Frances Carmona (Lemos)....................................................................................5
Raymond Coletti ....................................................................................................6
Robin Corral (Delgado)..........................................................................................6
Donald Duplessis...................................................................................................8
Pamela English (Potts) ..........................................................................................9
Robert Giles...........................................................................................................12
Cheryl Harris..........................................................................................................15
Danielle Hasberry ..................................................................................................15
Lonnell Horn ..........................................................................................................17
Mary Hyemingway.................................................................................................21
Lola Joyner ............................................................................................................22
Elbert Kellem .........................................................................................................24
Edwin Lear.............................................................................................................25
Juanita Madden.....................................................................................................26
Natasha McQueen née Warren.............................................................................28
Leo Mitchell ...........................................................................................................29
Tom Montoya.........................................................................................................30
Cindy O’Neal .........................................................................................................33
Marta Perez ...........................................................................................................34
Cheryl Ramirez......................................................................................................35
Joyce Robinson.....................................................................................................35
Deborah Sleets......................................................................................................41
Daphne Thomas....................................................................................................43
James P. Thornton ................................................................................................44
Brent Turner ..........................................................................................................44
Maria Velasquez....................................................................................................44
Michelle Woods .....................................................................................................46
Jana Farrage .........................................................................................................46