First Transit, Inc.

FIRST TRANSIT, INC. 350 NLRB No. 68 825 First Transit, Inc., Successor with Liability to Ry- der/ATE, Inc. and Wholesale Delivery Drivers, Salespersons, Industrial and Allied Workers, Local 848, International Brotherhood of Team- sters.1 Cases 21–CA–32146 and 21–CA–32285 August 17, 2007 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW On July 31, 2000, the Board issued a Decision and Or- der finding that, in relevant part, the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally chang- ing its attendance policy.2 The Board ordered the Re- spondent, among other things, to reinstate and make whole any employee who had been discharged, sus- pended, or disciplined as a result of the unlawfully im- plemented policy.3 On October 17, 2001, the Board’s order was enforced by the United States Court of Ap- peals for the District of Columbia Circuit.4 Subsequently, the Regional Director identified 37 em- ployees whose employment was allegedly lost pursuant to the unlawfully implemented policy. On May 27, 2004, the Regional Director issued a compliance specifi- cation setting forth the amount of backpay due the claim- ants. The Respondent filed an answer on July 21, 2004. A hearing on the issue of backpay was held on various dates beginning on November 1 and ending on Novem- ber 18, 2004, before Administrative Law Judge James M. Kennedy. On July 29, 2005, he issued the attached sup- plemental decision, ordering backpay for 28 claimants. The Respondent and the General Counsel filed excep- tions, supporting briefs, and answering briefs. The Na- tional Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision and the record in light of the exceptions5 and briefs6 and 1 We have amended the caption to reflect the disaffiliation of the In- ternational Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 331 NLRB 889. On September 8, 2000, First Transit, Inc. entered into a stipulation in which it admitted that it was a successor with liabil- ity to Ryder/ATE. 3 The unlawfully implemented attendance policy involved a point system, whereby employees who accumulated a certain number of attendance points for specified conduct within a specific time period would be terminated. For instance, an automatic discharge occurred if an employee was assessed 20 points within any 12-month period or 10 points within any 90-day period. The underlying decision identified three employees who had been discharged pursuant to the policy, but left to compliance the identification of other employees adversely af- fected by the policy. 4 22 Fed.Appx. 3 (D.C. Cir. 2001). 5 No party has excepted to the judge’s backpay determinations for employees Raymond Coletti, Jana Farrage, Cheryl Harris, Mary Hyem- has decided to affirm the judge’s rulings,7 findings,8 and conclusions as modified herein. ingway, Natasha McQueen, Leo Mitchell, Cheryl Ramirez, James Thornton, Brent Turner, and Michelle Woods. 6 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 7 The Respondent excepts to the judge’s denial of its motion to re- open the record to admit employee personnel records into evidence for all of the claimants. The Respondent argues that such evidence sup- ports a finding that some of the claimants would have been terminated under the Respondent’s prior, lawful attendance policy. We find no merit in this exception. Under Sec. 102.48(d)(1) of the Board’s Rules and Regulations, only newly discovered evidence, evidence that has become available only since the close of the hearing, or evidence that the Board believes should have been taken at the hearing will be admit- ted at any further hearing. The Respondent’s belated attempt to present this evidence meets none of those requirements. The Respondent does not contend that this evidence is newly discovered or has become avail- able only since the close of the hearing. In fact, the Respondent has expressly indicated that it considered introducing such evidence during the hearing, but simply failed to do so. Accordingly, we deny the Re- spondent’s exception. 8 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We agree with the judge’s finding that claimant Patrice Benemie made a reasonable effort to secure interim employment. Based on Benemie’s credited testimony, she applied for several bus driving jobs, in addition to obtaining employment with a fast food restaurant and a school district. Accordingly, Benemie had interim earnings during every quarter of the backpay period. Because the record indicates that Benemie diligently sought employment considering the backpay period as a whole, we adopt the judge’s backpay determination. See, e.g., Midwestern Personnel Services, 346 NLRB 624 at 625, 627–628 (2006) (reaffirming and applying principle that sufficiency of discrimi- natee’s job search is determined with reference to backpay period as whole, not isolated portions). Contrary to the judge and his colleagues, Chairman Battista finds that claimant Patrice Benemie did not make reasonably diligent efforts to obtain work throughout the backpay period. Accordingly, he would toll her backpay from the last quarter of 1997 until her hire at Del Taco in 1998, and from her quit from Del Taco in September 1998 until her hire by the Chino School district approximately 1 year later. Although she applied for three or four jobs within 3 weeks after her discharge, Benemie offered no testimony as to any searches in the last quarter of 1997 or in the period of 1998 prior to her hire at Del Taco. In addition, she voluntarily quit Del Taco in September 1998. She offered no testimony as to any searches after that until she was hired by the Chaffey School District in September 1999. The judge found that Benemie “was unclear on her job-seeking efforts,” and was “unable to place them in any particular time frame.” Under these circumstances, the Chairman would toll Benemie’s backpay during the above-specified periods when her job search efforts were not reasonably diligent. Contrary to the majority, Chairman Bat- tista finds that Benemie’s efforts during these periods were not reason- able and were, at best, “most sporadic.” Moran Printing, 330 NLRB 376, 376 (1999); see also DeLorean Cadillac v. NLRB, 614 F.2d 554 (6th Cir. 1980) (denying backpay to claimant who maintained that he DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826 A. Frances Carmona (Lemos) The judge awarded backpay to Carmona in the amount of $49,747.27. Carmona was discharged under the Re- spondent’s unlawfully implemented attendance policy on April 15, 1998. During the period covered by the com- pliance specification, Carmona obtained interim em- ployment with Budget Rent-A-Car as a fleet truck and car driver.9 Carmona testified that she quit the Budget job several months later because it paid $8 per hour. The judge found that Carmona was entitled to the full award set forth in the backpay specification, relying in part on his conclusion that Carmona’s decision to quit her job at Budget was reasonable, based on the amount of pay she received. He accordingly found that the Respondent failed to show that Carmona’s quit amounted to a willful loss of employment. As an initial matter, we find that the judge incorrectly applied the burden of proof in evaluating Carmona’s de- cision to quit her interim employment at Budget. When a backpay claimant quits interim employment, “the burden shifts from the Respondent to the Government to show that the decision to quit was reasonable.” Minette Mills, Inc., 316 NLRB 1009, 1010 (1995). Accordingly, the judge erred by placing the burden on the Respondent to show that Carmona’s decision to quit amounted to a will- ful loss of employment. Instead, the General Counsel had the affirmative burden to establish that Carmona’s quit from Budget was reasonable. We find that the General Counsel has failed to meet his burden. The only justification given for Carmona’s resignation was that her job at Budget paid $8 per hour, which was less than the $8.75 per hour Carmona had been paid while working for the Respondent.10 Although Carmona experienced a pay cut in accepting interim em- ployment at Budget, the General Counsel presented no evidence indicating that the reduction made it economi- cally unfeasible for Carmona to continue in her interim position, and there is no evidence that she had located alternative employment at a higher rate. Cf. Sam Tanksley Trucking, Inc., 210 NLRB 656 fn. 1 (1974) (backpay claimant’s resignation from interim employ- ment deemed reasonable where it was “economically unfeasible” for him to continue). Also, although Car- mona testified that Budget planned to lower her pay from $8 per hour, the General Counsel made no attempt to applied to 30 jobs but “produced no corroborating witnesses or tangible evidence of his efforts”). 9 The record indicates that Carmona’s employment at Budget oc- curred during the first quarter of 1999. 10 The only evidence of Carmona’s earnings at Budget was the com- pliance specification amount of $1147.18 for the first quarter of 1999, the period she was employed at Budget. adduce more specific testimony regarding the alleged impending reduction. We conclude that Carmona’s interim position at Budget was substantially equivalent to her prior position and that she quit without a reasonable basis for doing so. Carmona drove a truck for the Respondent for $8.75 per hour. Carmona drove a car for Budget for $8 per hour. Board law does not require that the wages of interim em- ployment be identical, but rather substantially equivalent, which this clearly was. Cf. Cassis Management Co., 336 NLRB 961, 969 (2001) (finding wage rate of $12 per hour “significantly lower” than rate of $17.50 per hour).11 Given the fact that the job at Budget was substantially equivalent, Carmona has not shown a reasonable basis for leaving it. To the extent that her pay was cut, she could have stayed on that job and recovered any disparity through a backpay order, i.e., a reduction in interim earn- ings and a concomitant increase in net backpay. Accordingly, we find that the General Counsel failed to prove that Carmona’s quit was reasonable. Knicker- bocker Plastic Co., 132 NLRB 1209, 1214–1215 (1953).12 11 We disagree with the dissent’s contention that Carmona’s job de- scription at Budget, “fleet truck and car driver,” “says nothing” about the nature of her work. Clearly, it indicates that Budget has cars and trucks that Carmona was employed to drive, which is similar to her position with the Respondent. These facts, combined with her very similar wage rates, establish that the Budget job was substantially equivalent to her previous one. 12 Member Liebman dissents, agreeing with the judge’s finding that Carmona’s resignation from Budget was reasonable. A claimant is not required to continue employment that is not suitable or not substantially equivalent to the position from which he or she was discriminatorily discharged. Ryder Systems, 302 NLRB 608, 610 (1991), enfd. 983 F.2d 705 (6th Cir. 1993). Member Liebman believes that the Respondent has failed to meet its threshold burden of showing that Carmona’s job at Budget was substantially equivalent. The record indicates only that Carmona was hired at Budget as a “fleet truck and car driver” at a reduced pay rate from her busdriver position at First Transit. This de- scription says nothing about the nature of Carmona’s work at Budget. In the absence of actual evidence, the majority assumes that the jobs were substantially equivalent simply because they both involved driv- ing. This position is unsupported by Board law. See Woodline Motor Freight, Inc., 305 NLRB 6, 8–9 (1991), enfd. 972 F.2d 222 (8th Cir. 1992). Furthermore, the compliance specification indicates that during the period Carmona was employed by Budget she made $1147.18, roughly one quarter of the amount she would have made had she not been unlawfully discharged. Accordingly, the majority’s narrow focus on hourly wage figures is misleading. This gross disparity in income, not otherwise clarified by the Respondent, precludes any finding that the jobs were equivalent, even accepting the majority’s suggestion that driving different types of motor vehicles is equivalent employment. Because the Respondent has failed to establish its threshold obliga- tion to show that this interim job was substantially equivalent to Car- mona’s bus driving job at First Transit, the General Counsel never had the burden to show that the quit was reasonable and, accordingly, the FIRST TRANSIT, INC. 827 Pursuant to the offset formula set out in Knickerbocker Plastic, supra at 1215, we have computed as the quar- terly interim earnings offset the pay that Carmona would have earned at Budget from the time of her quitting through the remainder of the backpay period, and we have deducted that offset ($1147.18) as interim earnings from her gross backpay. Where Carmona secured other employment during the time the offset is applicable, and where, on a quarterly basis, she earned at such employ- ment a greater amount than the offset, the offset was not applied, but the actual interim earnings were deducted from gross backpay. Where she earned less than the off- set at employment secured subsequent to quitting, also on a quarterly basis, the amount of the offset was de- ducted from gross backpay. Applying this formula to the remainder of Carmona’s backpay period, we have used the offset amount of $1147.18 for all four quarters of 2001 because that amount is higher than her actual in- terim earnings in those quarters. Likewise, we have used the offset amount of $277.09 for the first partial quarter of 2002.13 We have, however, used her actual earnings for all of 1999 and 2000 because those earnings are higher than the corresponding offset figures. As a result of these computations, we shall modify the recom- mended Order by requiring the Respondent to pay Car- mona net backpay of $48,299.61. B. Juanita Madden The judge awarded backpay to Madden in the amount of $4882.42, finding that she had been terminated pursu- ant to the Respondent’s unlawfully implemented atten- dance policy. During the hearing, several personnel re- cords from the Respondent’s files were introduced into evidence to show that Madden was terminated for violat- ing the policy. An “Employee Attendance Form” dated September 18, 1997, and signed by Madden states that Madden had accumulated eight points under the atten- dance policy as of that date. An “Employee Profile and Change Form” dated September 29, 1997, and signed by several supervisors states that Madden was terminated on September 19, 1997, for exceeding the 10-point limit under the policy. Contrary to the Respondent’s records, however, Mad- den testified that she resigned from employment on Sep- tember 19, 1997. She also testified that no one from the company ever told her that she was being terminated, or that she was being terminated because she had received judge did not err in finding Carmona’s quit from Budget was not a basis for reducing her backpay. 13 Carmona’s backpay period ended on January 23, 2002, less than a month into the first quarter of 2002. To reflect that partial quarter, Carmona’s quarterly offset was reduced by the same proportion used in the backpay specification. too many points. In fact, Madden testified that she was “barely aware” of how the attendance point system worked.14 Although Madden admitted signing the per- sonnel documents referenced above, she testified that she did so only after she had already resigned. Nonetheless, the judge concluded that Madden was fired by the Re- spondent pursuant to its attendance policy. Accordingly, the judge awarded Madden the full amount set forth in the backpay specification. We reverse and find that the General Counsel failed to sustain his burden of proving that Madden was dis- charged pursuant to the Respondent’s unlawfully imple- mented policy. In so finding, we emphasize that Mad- den’s admission of resignation was against her own pe- cuniary interest in receiving a backpay award. Cf. Brown Transport Corp. v. NLRB, 334 F.2d 30, 38 (5th Cir. 1964) (holding that the courts pay special attention to statements against interest). We recognize that the Respondent’s personnel records are also against its inter- est in this case. Thus, we are presented with a situation where evidence against interest probative of a discharge is contradicted by evidence similarly against interest probative of a quit. In these circumstances, we do not believe that the General Counsel has met his burden of proof that Madden was discharged.15 We therefore re- 14 The dissent’s contention that Madden’s awareness of the atten- dance policy had no effect on whether she was terminated under the policy misses the mark. Madden’s testimony that she was “barely aware” of the policy is consistent with the rest of her testimony that she resigned for her own reasons, independent of the policy. Further, in relying on Madden’s consistent testimony, we have not, as urged by the dissent, ignored the judge’s decision to credit the Respondent’s person- nel records. Rather, faced with both the records and Madden’s credible testimony, we find that the General Counsel failed to prove, by a pre- ponderance of the evidence, that there was a discharge in violation of the Act. 15 The cases relied on by our dissenting colleague to support a find- ing that Madden was discharged are readily distinguishable. In Great Lakes Oriental Products, 283 NLRB 99 (1987), the Board credited the employer’s records to refute the employer’s testimony that two em- ployees quit their jobs as opposed to being discharged. In that case, the employer’s self-serving testimony was less probative than the em- ployer’s business records that established backpay liability. In this case, Madden’s testimony, like the business records in Great Lakes, were statements against interest and thus intrinsically credible. In Phil’s Sav-Mart Service, 220 NLRB 1233 (1975), the Board cred- ited Social Security Administration records over a claimant’s testimony about his interim employment. In doing so, however, the judge relied on the fact that the claimant’s testimony was “not that explicit or posi- tive.” Madden’s admission was not only clear and unambiguous, it was repeated and adamant. The dissent’s contention that there is no basis for thinking that the Respondent’s records are inaccurate is belied by Madden’s credible testimony. Furthermore, the dissent’s assertion that the Respondent may have given Madden the option of resigning as an alternative to being fired is merely unsupported speculation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828 verse the judge and find that Madden is not entitled to backpay.16 C. Cindy O’Neal The judge found that no backpay was owed to O’Neal. O’Neal was hired by the Respondent as a bus driver in December 1998. On June 30, 1999, O’Neal met with Operators Manager Laurie Dobson, who informed O’Neal that she had accumulated 10 points under the attendance policy. Dobson told O’Neal that she was scheduled for imminent termination as a result of her absences, but gave O’Neal the option of resigning as an alternative to being fired. O’Neal chose to resign.17 Contrary to the judge, we find that O’Neal lost her em- ployment pursuant to the Respondent’s unlawfully imple- mented attendance policy. The Respondent’s 8(a)(5) liabil- ity was established in the underlying decision, where the Board ordered the Respondent to, among other things, “make whole all employees who were discharged . . . as the result of institution of the April 24, 1997 attendance policy.” Based on this order, the correct focus is on the 16 Member Liebman dissents, agreeing with the judge’s finding that Madden was fired pursuant to the Respondent’s unlawfully imple- mented policy. In contrast to the majority, Member Liebman believes that the Respondent’s contemporaneous personnel records are far more probative of what action the Respondent actually took than Madden’s testimony 7 years later. See Great Lakes Oriental Products, 283 NLRB 99, 108 (1987) (relying on the Employer’s records to refute the Employer’s claim that two employees quit their jobs, as opposed to being discharged). The majority’s approach conflicts with the Board’s longstanding policy of crediting written records rather than the “imper- fect memory” of backpay claimants. Phil’s Sav-Mart Service, 220 NLRB 1233, 1234 (1975). There is no basis for thinking that the Re- spondent’s records are inaccurate. Indeed, if Madden had actually resigned, the Respondent would have had a strong incentive to record that fact, to reduce its risk of liability for unemployment compensation, at a minimum. Meanwhile, there are obvious reasons why Madden’s recollection might be mistaken, including the passage of time and the possibility that, as with employee Cindy O’Neal (discussed below), the Respondent gave Madden the option of resigning as an alternative to being fired. The majority emphasizes that Madden was “barely aware” of how the attendance point system worked. Of course, Madden’s lack of awareness of the system had no bearing on whether she actually accu- mulated a sufficient number of attendance points to merit dismissal. The majority also argues that, in light of the conflicting evidence in the record, the General Counsel failed to meet his burden in showing that Madden was discharged. In doing so, the majority ignores the judge’s explicit decision to credit the employer’s personnel records over Mad- den’s testimony. The credited evidence essentially requires a finding that the General Counsel met his burden of establishing Madden’s dismissal. 17 In denying O’Neal backpay, the judge applied the doctrine of con- structive discharge, finding the General Counsel did not satisfy the first element of the claim because he did not show that O’Neal’s resignation was compelled by an unpleasant change in working conditions. The General Counsel did not make this argument in his posthearing brief, and we reject the judge’s application of a constructive-discharge analy- sis in this remedial proceeding. causal nexus between O’Neal’s loss of employment and the institution of the Respondent’s policy. As the judge acknowledged, O’Neal was “between a rock and a hard place”: if she did not resign, she would be terminated under the Respondent’s absence policy. When faced with this dilemma, O’Neal chose to resign.18 The record indicates that O’Neal would not have re- signed but for her accumulation of 10 attendance points and the imminent threat of termination. Accordingly, O’Neal lost her employment a result of the Respondent’s institution of its policy. We reverse the judge’s dismissal and order the Respondent to pay the amount based on the modified backpay specification, $58,487.62, to make O’Neal whole for her unlawful discharge.19 D. Joyce Robinson The judge awarded backpay to Robinson in the amount of $15,809.82.20 Robinson began her job with the Re- spondent on January 27, 1997, and was discharged pur- suant to the unlawfully implemented attendance policy on May 18, 1997. During the backpay hearing, Robinson came forward with testimony that she had been convicted of second degree robbery in 1992. When asked whether she had disclosed the prior felony conviction on her ap- 18 We reject our colleague’s reliance on O’Neal’s off-handed state- ment that she “intended on quitting if [she] hadn’t got those ten points.” O’Neal uttered this isolated statement only after she was unlawfully forced to resign or face termination based on the Respondent’s unlaw- fully implemented attendance policy. Further there is absolutely no evidence that O’Neal had taken any steps to quit; indeed, whether, and when, she might have quit—in the absence of the Respondent’s ultima- tum—is highly speculative. Where, as here, the Respondent has pre- sented only ambiguities in an effort to limit a claimant’s backpay, the Board will adhere to its well-established remedial principle that “the backpay claimant should receive the benefit of any doubt rather than the Respondent.” United Aircraft Corp., 204 NLRB 1068 (1973). Chairman Battista, furthermore, disagrees with his colleague’s con- tention that O’Neal’s situation is similar to Madden’s. Unlike Madden, who testified that she quit and, thus, was not discharged, O’Neal stated that she intended on quitting, without specifying any time or controlling circumstances. Chairman Battista finds this single statement far too slender a reed to support a denial of backpay. 19 Member Kirsanow would deny O’Neal backpay. Like his col- leagues, Member Kirsanow rejects the judge’s reliance on a construc- tive discharge theory. He also acknowledges that O’Neal testified that she was given the option of resigning in lieu of discharge, and she took that option. Contrary to his colleagues’ statement, however, the record does not show “that O’Neal would not have resigned but for her accu- mulation of 10 attendance points and the imminent threat of termina- tion.” Rather, as set forth by the judge, O’Neal testified that she “in- tended on quitting if I hadn’t got those ten points.” O’Neal’s testimony was unequivocal, and it fully supports the judge’s finding that resigna- tion was “an option [O’Neal] was going to exercise regardless of what happened.” Like claimant Madden, O’Neal testified against her own pecuniary interest, so her testimony carries weight. Member Kirsanow would take O’Neal at her word and thus deny backpay. 20 The judge limited Robinson’s backpay period to 1 year, from May 19, 1997, to May 18, 1998. FIRST TRANSIT, INC. 829 plication for employment with the Respondent, Robinson testified that she did. Upon examining Robinson’s actual application, however, the judge found that Robinson had checked the ‘no’ box in response to the question “Have you ever been convicted of a felony?” Accordingly, the judge discredited Robinson’s testimony on this issue. In addition, the judge found that Robinson had intentionally concealed the conviction on her employment application. Salvador Garcia, a manager for the Respondent, testified that the Respondent was not aware of Robinson’s convic- tion at the time of her hiring. The judge credited Gar- cia’s testimony that Robinson would not have been hired had the Respondent known of her conviction, pursuant to its policy of not hiring felons.21 The judge also credited Garcia’s testimony that Robinson would not have been hired had the Respondent known that she lied on her job application. For the following reasons, we reverse the judge and award Robinson backpay for the entire back- pay period. In John Cuneo, Inc., 298 NLRB 856 (1990), the Board held that if an employer establishes that an employee engaged in misconduct for which the employer would have discharged any employee, reinstatement is not or- dered and backpay is terminated on the date that the em- ployer first acquired knowledge of the misconduct. Con- trary to the judge, we see no reason to depart from the well-established John Cuneo rule in deciding this case. Thus, even assuming that the Respondent has established that Robinson would not have been hired had it known either of her prior criminal conviction or of her denial of that fact on her employment application, the Respondent did not find out about either aspect of this misconduct until the backpay hearing on November 16, 2004, after the end of the relevant period covered by the compliance specification.22 Furthermore, there is no evidence that the Respondent would have learned of the conviction or falsification at some point before the hearing. Accord- ingly, applying John Cuneo, we find that Robinson is entitled to backpay for the entire backpay period from May 19, 1997, to January 23, 2002.23 21 The record shows, however, that a criminal conviction did not per se preclude employment with the Respondent. 22 The record shows, however, that a criminal conviction did not per se preclude employment with the Respondent. 23 Additionally, in its posthearing brief to the judge, the Respondent argued that Robinson’s termination from Mental Health Systems in November 1999 constituted a willful loss of employment. We find no merit in the Respondent’s argument. The record shows that Robinson was fired for being absent from work. Robinson testified that her ab- sences were compelled by the destruction of her home in a fire and the displacement of her family. Under these circumstances, we find that Robinson’s behavior did not constitute deliberate or gross misconduct. See Ryder Systems, supra, 302 NLRB at 610. Accordingly, we award Robinson the amount of backpay set forth in the specification. Contrary to the dissent, the Board in John Cuneo did not “simply [weigh] the equities of that specific case” in reaching its result. Rather, the Board relied on long- standing precedent holding that backpay shall be tolled on the date when the Respondent first learns of the claimant’s misconduct. See East Island Swiss Products, 220 NLRB 175 (1975); A.A. Superior Ambulance, 292 NLRB 835 fn. 7 (1989). We apply that principle here. In awarding Robinson backpay, we do not condone her misconduct; rather, we simply recognize that the Re- spondent did not learn of her actions until the backpay period had ended. We also reject our colleague’s suggestion that the Re- spondent should be relieved of the normal remedy for Robinson because, he says, the Respondent “did not en- gage in pervasive or flagrant violations of the Act.” We disagree. The Respondent discharged multiple claimants in violation of the Act. Each discharge represents one of the most serious forms of employer misconduct, and each one warrants the normal remedial response. Further, our colleague’s reliance on ABF Freight Sys- tem, Inc. v. NLRB, 510 U.S. 317 (1994), is misplaced. In that case, the Supreme Court unanimously upheld the Board’s decision to award backpay, and reaffirmed the Board’s broad discretion as to remedial matters. The concurring opinion of two Justices is consistent with the principle that the Board has discretion, and does not war- rant a departure from the Board’s historic approach to the issue. Unlike our colleague, we find it unnecessary to reconsider John Cuneo in light of that decision.24 Accordingly, we reverse the judge’s limited award and order the Respondent to pay the amount set out in the backpay specification, $53,165.07, to make Robinson whole for her unlawful discharge.25 24 Admittedly, under John Cuneo, Robinson will receive backpay for the period from May 19, 1997 through January 23, 2002, because the Respondent never learned of Robinson’s conviction and resume falsifi- cation until the hearing. However, the record shows that a criminal conviction did not per se preclude employment with the Respondent. Thus, even had the Respondent learned of her conviction at the time of application, there is no showing she would not have been hired. Also, as noted above, the Respondent’s mass discharge of employees sup- ports remedial relief. Under these circumstances, we find that backpay and reinstatement for Robinson under John Cuneo are appropriate. We recognize that Robinson also testified untruthfully at trial. However, there is no showing that the Respondent would not hire, or would dis- charge, a person who engaged in such misconduct. In these circum- stances, although we do not condone the misconduct we do not believe that it warrants a denial of the normal remedy. 25 Member Kirsanow would deny Robinson backpay. He disagrees with the majority’s broad characterization of the holding of John Cu- neo, Inc., 298 NLRB 856 (1990). The Board did not there hold that it lacked discretion to deny all backpay to a claimant regardless of the seriousness of the claimant’s misconduct. Indeed, such a holding would be contrary to Supreme Court precedent. See Shepard v. NLRB, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge, as modified, and orders that First Transit, Inc., Pomona, California, its officers, agents, successors, and assigns, shall satisfy the obligation to make whole the following discriminatees by paying them the following amounts, together with interest accrued to the date of payment computed in the manner described in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax and withholdings required by Federal and State laws. Clide Aaron $16,210.13 Patrice Benemie 33,300.77 Frances Carmona (Lemos) 48,299.61 Raymond Coletti 25,611.89 Robin Coral (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 33,076.57 459 U.S. 344, 349 (1983) (“Congress has delegated to the Board the power to determine when the policies of the Act would be effectuated by a particular remedy.”). Rather, the John Cuneo Board simply weighed the equities of that specific case, in which the claimant had falsified his employment history on his application. Robinson’s mis- conduct was substantially more grave than that. Robinson had been convicted of a felony. She lied on her employment application, claim- ing that she had never been thus convicted. She then compounded that misconduct by testifying falsely at the hearing, in furtherance of an effort to obtain backpay for herself, that she had truthfully disclosed her felony conviction on her application. Thus, John Cuneo is distinguish- able. Weighing the equities here, Member Kirsanow observes that the Re- spondent did not engage in pervasive or flagrant violations of the Act. On the other hand, Robinson falsified her application to conceal that she was a convicted felon—a far more serious lie than that of the claim- ant in John Cuneo—and then lied again, this time under oath, in an attempt to cover up the previous lie. In Member Kirsanow’s view, the equities dictate that no backpay should be awarded. In ABF Freight System, Inc. v. NLRB, 510 U.S. 317 (1994), the Su- preme Court concluded that it was within the Board’s discretion to award backpay to an employee who, like Robinson, lied to his employer and again under oath before an administrative law judge. In a concurring opinion joined by Justice O’Connor, Justice Scalia expressed his disap- pointment that the Board in that case was “really not very much con- cerned about false testimony.” Id. at 331. He concluded by stating: “I concur in the judgment of the Court that the NLRB did nothing against the law, and regret that it missed an opportunity to do something for the law.” Id. Member Kirsanow would accept Justice Scalia’s invitation and use the opportunity here to deny Robinson backpay. Juanita Madden 0 Natasha McQueen 36,552.64 Leo Mitchell 951.01 Tom Montoya 0 Cindy O’Neal 58,487.62 Marta Perez 11,081.91 Cheryl Ramirez 23,487.85 Joyce Robinson 53,165.07 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 $929,860.61 Lisa A. McNeill, for the General Counsel. Douglas N. Silverstein (Kesluk & Silverstein), of Los Angeles, California, and Daniel R. Beerck, of Cincinnati, Ohio, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge. This com- pliance hearing was tried in Los Angeles, California, on 8 hear- ing days beginning November 1, 2004. The underlying Board Order (331 NLRB 889, Member Hurtgen concurring) was is- sued 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 Dis- trict 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 liabil- ity 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 dis- pute 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 Tran- sit (Respondent) properly filed an answer to the compliance specification on July 21, 2004.1 After the hearing concluded, the 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 for- mulas which have been followed. The principal concerns 1 The Regional Director granted two extensions of time for filing the answer. FIRST TRANSIT, INC. 831 raised by the answer and the applicable stipulation are a variety of offsets. Most frequently, Respondent argues that the claim- ant2 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 in- terim employment; and, in one case, deliberately choosing un- deremployment. Respondent also argues that some of the em- ployees were ineligible for backpay in the first place because they were either probationers or they would have been dis- charged 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 de- ceased claimants. It covers seven former employees and re- quires Respondent to establish a set-aside of approximately $643,000 while the parties jointly determine, on an administra- tive basis, whether the gross backpay of the missing and de- ceased 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 fol- lows: 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 demon- strate 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 earn- ings 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 uncertain- ties 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 miti- gate, the law does not require the highest standard of diligence, 2 I use the word “claimant” here, rather than the traditional word “discriminatee,” because none of the individuals were victims of pur- poseful discrimination as prohibited by the National Labor Relations Act (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 add him to the stipulation based upon the Gen- eral Counsel’s concession on February 28, 2005, in response to a show cause order. but only that he or she make an “honest good-faith effort to find suitable employment.” NLRB v. Arduini Mfg. Co., 394 F.2d 420, 422–423 (1st Cir. 1968). Furthermore, the backpay claim- ant’s efforts during the entire backpay period, rather than in any particular quarter, must be considered to determine whether the claimant was reasonable in his efforts. Black Magic Resources, Inc., 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 employ- ment in the field in which he or she had been performing at the time of the discharge—that is, substantially equivalent em- ployment. 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 un- successfully 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 preexisting collective-bargaining contract between the predecessor, Laidlaw Transit and Wholesale Delivery Driv- ers, 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 per- ceived 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 Section 8(a)(5). It also found that ap- plication 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 at- tendance policy impacted each at different times. Each driver was required to maintain a class B drivers license with a pas- senger endorsement. Some held class A licenses with addi- tional endorsements, such as airbrakes, 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. A. Clide Aaron Clide Aaron was hired in late October 1999 and was dis- charged under the absentee policy on July 25, 2000. The speci- fication 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 un- able to work due to family circumstances (caring for her daugh- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832 ter 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 fourth quarter of 2001 and the first 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 Respondent agrees with the General Counsel that Aaron made an adequate search for work immediately after her dis- charge during the third quarter of 2000. The gross backpay for that period is $3218.87. Where Respondent and the 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 re- covered. The accident was followed by a second family emer- gency 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 em- ployment 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 1-1/2 years 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 applica- tions 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 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. General Counsel. The combination is the familiar duty to miti- gate as set forth above and the second is the so-called “hazards of living” rule set forth in American Mfg. 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 employ- ment. 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 responsi- bility 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 circum- stances) 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. Respondent has not challenged Aaron’s efforts to obtain in- terim employment during the remainder of the backpay period. In any event, taken as a whole, her efforts were reasonable. For those timeframes 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. B. Patrice Benemie Patrice Benemie’s backpay specification has been modified. The corrected specification is General Counsel’s Exhibit 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 earn- ings from the date of her discharge until the first 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 Ry- der/ATE. Although her testimony is somewhat disjointed, it also appears that she applied for a schoolbus 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 FIRST TRANSIT, INC. 833 asserts that it was unable to obtain any useful information be- cause 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, subse- quent pregnancy, and the like. However, Respondent has the burden of proof to demon- strate 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 Air- craft Corp., 204 NLRB 1068. Accordingly, Benemie is entitled to the full amount set forth in the modified appendix C-4, the sum of $33,300.77. C. Frances Carmona (Lemos) Ryder/ATE hired Frances Carmona in September 1997; she was discharged under the unlawfully imposed attendance sys- tem on April 15, 1998. Her backpay period runs from April 16, 1998, until January 23, 2002. Although unrelated to any reme- dial issue under scrutiny here, Respondent actually reinstated her on April 3, 2004. Respondent’s argument concerning Carmona entails two in- cidents, each of which it asserts requires termination or reduc- tion of her backpay. However, Respondent’s brief does not take issue with the net backpay until the first quarter of 2001, which correlates with the second incident. The first incident involves Carmona’s discharge by her first interim employer, Laidlaw Transit. Laidlaw also held a con- tract with the Foothill Transit Authority, but over routes origi- nating from a yard in Montebello (as opposed to Ryder/ATE- First Transit which operated out of Pomona). The second con- cerns her refusal to take a pay cut at Budget Rent-A-Car. Car- mona 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, Respon- dent’s position is without merit. Carmona’s testimony is re- plete with efforts to find and remain employed. Even the Laid- law employment demonstrates that. She was hired as a coach driver for Laidlaw, taking a pay cut of more than $1, 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 Ry- der 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 miscon- duct—and immediately sought to resume her job. See also P*I*E Nationwide, 297 NLRB 454 (1989), enfd. in pertinent part 923 F.2d 506 (7th Cir. 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 per hour. She decided that rate was sig- nificantly 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 demon- strating that Carmona willfully refused employment during the period in question. Accordingly, her backpay has been com- puted correctly at $49,747.27. D. 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 cir- cumstances is required. The net backpay due Coletti is $25,611.89. E. 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 Trib- une, 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 General Coun- sel’s Exhibit 9. Respondent does not quarrel with the adjust- ments 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 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 “mis- conduct” 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 estab- 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834 lished by the Board in Ryder Systems and P*I*E Nationwide, both supra. In Ryder, at 610 the Board said: 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 con- duct fell within that standard. Elmore may have missed sev- eral scheduled deliveries, but he committed no offense involv- ing moral turpitude and his conduct was not otherwise so out- rageous 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 re- gard to David Elmore’s discharge from Music City. [Emphasis supplied.]6 What the Board observed in Ryder Systems, supra, can also be seen here. Corral’s conduct does not suggest that she delib- erately 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 pro- duces a similar result. That interim employer was a kitchen equipment manufacturer (tortilla machines) which hired Corral as a receptionist at $8 per hour. It was a family-owned business with little opportunity for advancement. After 6 months, Corral resigned to take a busdriver 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 the State licensing requirements and the transition was relatively smooth. That it paid less than the re- ceptionist 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 busi- ness is not clear from the record, nor is the nature of the job she took. She worked from August 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 bro- ken nose, resulting in bruising and some dizziness. The com- pany 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 reception- 6 See also Met Food, 337 NLRB 109, 114 (2001). ist 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 pe- riod (thereby crediting all periods of unemployment with that quarterly rate and earnings). This would offset the gross back- pay claim to zero. As noted, I cannot do so, for there is insuffi- cient 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 General Coun- sel’s Exhibit 9, to be a reasonable estimate of her net backpay, $29,399.59. F. Donald Duplessis Donald Duplessis’s backpay period is from August 7, 1998, through May 27, 2003. He is one of the few whose specifica- tion 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 credi- ble. 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 third quarter of 2001, thereby excluding the last 2 years from the calculus. It is accurate to say that Duplessis’s responses to Respon- dent’s inquiries create some questions which are not fully an- swered. 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 Depart- ment (EDD) which would fax applications and resumes to em- ployers who had listed jobs. The EDD apparently did not rou- tinely provide copies to Duplessis of the material it sent out on his behalf. Even if it was available, Duplessis had no real in- centive 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 situa- tions. They could not usually be found in the telephone direc- tory and some had even left the State. However, none of these facts advance Respondent’s argu- ment that the last 2 years of backpay should be denied. Du- plessis, in 1998 during the earlier part of his backpay period, had begun to attend a nearby community college7 on a part- time basis. He was seeking to expand his job marketability, trying to “restructure” his life. He said he was weak in com- puter skills, English literature, and math. He also sought expo- sure to the standard general education requirements of the Cali- 7 Mount San Antonio College in Walnut. FIRST TRANSIT, INC. 835 fornia 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 timeframe Respondent wishes to strike, he sought many types of jobs hoping to utilize his col- lege 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 suc- cess 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’ 2002 job-seeking ef- forts were 2 years past and his 2003 efforts (through the second quarter per the specification) were nearly 18 months past. Memory is a far from perfect means to test fleeting, and there- fore 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. G. 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 (second, third, and fourth 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. 8 He did earn some extra money scavenging for bottles and cans. These negligible earnings helped him with tuition and have been ac- counted for in the specification. Before discussing Respondent’s first argument, it should be observed that although the backpay period covers 14 full quar- ters and parts of 2 others, it reflects no gross backpay calcula- tion for 9 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 Respon- dent’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 unlaw- fully 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 Ber- nardino 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 appli- cations 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 dur- ing 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 applica- tion 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, re- ceived 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. Uncon- ventionally, 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 pay- ing 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 unem- ployment 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836 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 Hos- pital. 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 On- tario 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 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 first quarter of 1999. While it could be said that English’s job search in the pre- ceding 2-1/2 quarters could have been more constant, it seems to me that her efforts exceeded the minimum to qualify as rea- sonable. 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 resent- ful/abusive ex-husband, and keeping that ex-husband at bay. Despite those concerns she sought and, when she found it, em- braced work.9 I have no doubts that she was an active job seeker during that 2-1/2-quarter period. The second issue is one of proof of proper allocation. Eng- lish answered Respondent’s subpoena by producing two Inter- nal 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 re- duces or eliminates the net backpay in those quarters of 1999 and 2001 where gross backpay has been shown. I am not con- vinced 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 earn- ings 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 specifica- tion is for quarters one and two. The specification seeks no backpay for quarters three and four. The IRS printout (English 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. 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. Eng- lish 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 earn- ings do not overlap (at least for quarterly Woolworth10 pur- poses). Thus, it is more probable that the earnings shown in English’s Exhibit 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’s Exhibit 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 adjust- ment 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 earn- ings 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 deliber- ately overlook any interim earnings. The fault, if any, lies with the passage of time and the uncertain memories which accom- pany it. English is entitled to the sum set forth in appendix C-9, $11,902.56. 10 F. W. Woolworth Co., 90 NLRB 289 (1950). FIRST TRANSIT, INC. 837 H. 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 reinstate- ment 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 hold- ing 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 be- lief that in March 1998, Ryder/ATE’s Pomona general man- ager, 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 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 Re- spondent’s Pomona yard, giving him the opportunity to con- verse 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 SILVERSTEIN]: Now, Mr. Giles states in his declaration, “Fritz offered to reinstate me to my old posi- tion.” 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 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, subse- quent to that, it was decided that if we had people that wanted to come back, and we knew or saw them, or what- ever, 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 11 The underlying unfair labor practice charges had been pending since July 14, 1997. 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 affida- vit 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 SILVERSTEIN]: Now, Mr. Giles, now that you have read that paragraph, does that help refresh your recol- lection 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 was okay that I was working at Laidlaw be- cause 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 re- fresh 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838 needed to be made until after the unfair labor practice proceed- ing decided matters. Respondent’s argument on this issue is rejected. A valid reinstatement offer must be specific, un- equivocal, 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 1-1/2 months, 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 Mu- nicipal Transit Authority). The General Counsel argues that Giles’s quitting the Laidlaw job was reasonable, citing Big Three Industrial Gas Co., 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 Knick- erbocker Plastic Co., 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 equiva- lent 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 dis- charge for cause, but Respondent could not argue that the dis- charge 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 earn- ings being reduced or 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 specifi- cation as set forth in appendix C-11. The total net backpay due Giles is $21,786.41. I. 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’ net backpay is $29,228.08. J. Danielle Hasberry Danielle Hasberry began bus driving for Ryder/ATE in De- cember 1996. She was discharged on August 7, 1997, for run- ning afoul of the wrongly imposed attendance policy. Her dis- charge 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 recal- culated in General Counsel’s Exhibit 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 General Counsel’s Exhibit 8 requires some fine tuning because her Laidlaw em- ployment was calculated on a $7.50 hourly rate. Hasberry testi- fied, however, that her hourly pay rate at Laidlaw was actually $8.50. By brief, the General Counsel has provided the addi- tional correction. The figure now sought is $26,953.66. Despite the correction due to the Laidlaw pay rate, Respon- dent argues that Hasberry’s interim employment history re- quires further reduction for two reasons. Both are connected to her resignation at Laidlaw in February 1998. The primary ar- gument derives from the congenital illness of Hasberry’s son and its connected complications. Under this scenario, Respon- dent argues she would have been forced to quit her job with Ryder/ATE just as she was forced to quit Laidlaw. Thus, Re- spondent 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 subse- quent 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 Sep- tember 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 Febru- ary 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, 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 re- signed from Laidlaw toward the end of February and did not seek work for about 1-1/2 to 2 months. The Regional Director 12 http://www.cahighways.org (last visited July 26, 2005). FIRST TRANSIT, INC. 839 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 Man- agement 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 experi- ence 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 em- ployment 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 be- tween 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 moder- ate 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 fol- low that her backpay claim ended at that point. In my view, this is nothing more than an issue of reasonableness. First, had the child’s illness occurred during her employment with Ry- der/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 dis- charge, 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 § 825 for the perti- nent regulations. Quitting would not have been necessary and she could have returned to duty after the same 2-1/2-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 can- not 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 back- pay, as adjusted, has been properly calculated as $26,953.66. K. 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. Al- though the parties have agreed that his backpay begins on July 29, 1997, and ends on June 14, 2004, Horn is one of the sub- jects of the stipulation in General Counsel’s Exhibit 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 regard- ing that status. The Board observed in West Point Mfg. Co., 141 NLRB 819, 838 (1963),13 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. Q. [BY SILVERSTEIN]: When did you apply at Omni Transit? 13 Enfd. in part 330 F.2d 579 (4th Cir. 1964), cert. denied 379 U.S. 882 (1964). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840 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 prob- lems? 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 con- viction 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, cur- rently 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 14 Garcia has worked at this yard for 13-1/2 years in various capaci- ties. 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. general understanding of the setting. In that somewhat limited context, he asked the following: Q. [BY 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 preemployment 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 reason- able 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 in- volved 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 SILVERSTEIN]: Okay, and so, is it well known in the industry that you could be fired if you were in ex- cessive 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. FIRST TRANSIT, INC. 841 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 mo- tion, 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 mo- tion is granted and exhibit A attached to it is received in evi- dence. The certified conviction shows that Horn, on September 8, 1999, in Pomona Municipal Court, pleaded guilty to count two, driving a vehicle in violation of California Vehicle Code § 23152(b), driving with a blood alcohol reading in excess of .08 percent. 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 (DOT) 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 § 383.51ff, 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 toler- ance 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 (DMV) 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, ex- plained 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 immedi- ately 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 supple- mental 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 third and fourth quarters of 1997, all quarters of 1998, and the first, second, and third 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 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, Pavil- ions, 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 cutoff 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 cutoff, 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. 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. L. Mary Hyemingway Three weeks before her discharge on April 26, 2000, Mary Hyemingway suffered an industrial injury to her back and was put on worker’s 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 chal- lenges. 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, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842 according to its brief, has no issues with quarters beginning with the fourth quarter of 2000 and running to the end of the backpay period. It takes issue only with the second and third 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 second and third quarters of 2000 was fairly limited; she was undergoing therapy at the same time. Her testimony sug- gests her search was not very successful: Q. [BY 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, re- trained 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 retrained, which the Company de- nied—they— Q. Okay. So, were you given any re-training, at all? 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 ei- ther— 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 Bernar- dino. 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 2000, by then into the fourth quarter which Respondent does not challenge. Instead, during the previous two quarters she had focused both on reha- bilitation from the injury and a futile attempt to obtain retrain- ing. 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 worker’s 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 fourth quarter of 2000 and would not have affected the second and third 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 second and third quarters of 2000. That subtraction results in a net backpay of $23,971.51. M. Lola Joyner Lola Joyner’s specification was modified by stipulation through the issuance of a new appendix C-18, included in the General Counsel’s Exhibit 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 ap- pendix 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 dis- charge, she submitted a slip requesting a 30-day medical leave supported by the doctor’s recommendation. Despite her re- quest, 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 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 third quarter of 2000, for the 3d and 4th quarters of 2001 and the first 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 al- ternative work until 2 months after the doctor cleared her to go back to work, seeming to concede Respondent’s point. How- ever, 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 em- ployer. 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 FIRST TRANSIT, INC. 843 contract language,15 it would appear that she had rights under the Family and Medical Leave Act, having worked for Ry- der/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 penalty16 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 circum- stances 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 linger- ing 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 airbrake 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 calcula- tions for the fourth quarter of 2000 and the first and second quarters of 2002, apparently conceding that Joyner sufficiently mitigated the backpay during those quarters. In subsequent quarters, the third and fourth quarters of 2002 and the first quarter of 2003, Respondent would deny Joyner all backpay based on its assessment of her testimony. During these quarters Joyner was drawing unemployment and partici- pating in two welfare programs designed to train the unem- ployed and enable them to change careers. The plans, known as 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 Ber- nardino Adult School to learn computers and typing. Respondent argues that these programs and the school re- quired Joyner’s presence during the workday 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. 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. Accordingly, I find Joyner to be entitled to the adjusted backpay figure of $30,825.28, the figure provided by the Gen- eral Counsel in its brief. N. 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 Ry- der/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 be- gan taking classes and interning in that field with the Los Ange- les 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 becom- ing 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 EDD19 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 3721 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 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 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 possi- ble 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 retir- ing 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844 second quarter of 1999 and the fourth quarter of 2000. It ac- knowledges that the remainder of the claim, to the first 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 inter- fered 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 SILVERSTEIN: You were working this intern- ship. You testified it was a full-time Monday through Fri- day job, correct? A. [WITNESS KELLEM]: Yes. I worked [volunteered] full-time. Q. Okay. Didn’t that in some ways hinder you or pro- hibit 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 ac- knowledge 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 some- body 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 Ry- der/ATE discharged him in June 1999. He is entitled to the sum set forth in appendix C-19, $43,479.83. O. Edwin Lear Edwin Lear had worked for Ryder/ATE less than 6 months when he fell victim to the unlawfully imposed attendance pol- icy. He is a claimant named in the original complaint. His backpay period begins on June 7, 1997. Although the specifi- cation, appendix C-20, shows his backpay period to have ended on January 28, 2002, an earlier reinstatement offer was discov- ered at the hearing and, as a result, the parties have stipulated that the backpay period ended coincident with the end of the third quarter of 2001, i.e., September 30, 2001. This modifica- tion 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 shut- tle 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 fourth quarter of 1998. He worked there more or less continually until the end of the back- pay 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 claim- ant’s good-faith effort to find interim employment. In any event, it is quite clear that Lear sought and found employment throughout the relevant timeframes. He did not remove himself from the job market. Lear is entitled to the modified amount shown above, $33,076.57. P. Juanita Madden Ryder/ATE hired Juanita Madden on June 2, 1997. Her last day of work was September 19, 1997. At the time she sepa- rated from employment, she was still a probationary employee, having been employed for only 3-1/2 months. Respondent contends, nevertheless, that Madden chose to quit and was not a victim of the unilaterally imposed attendance system. FIRST TRANSIT, INC. 845 According to the modified specification found in General Counsel’s Exhibit 3, Madden’s backpay period begins on Sep- tember 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 $4882.42, 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 oth- erwise 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 pro- bationary 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 re- served 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 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 em- ployee at the time you resigned, correct? A. Probably so. I don’t remember. . . . . Q. [BY SILVERSTEIN]: Ms. Madden, since you re- signed, 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 atten- dance point system worked, having heard about it second hand from other employees. Three documents were offered concerning Madden’s depar- ture. 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 MCNEILL] Ms. Madden, that document, [Mad- den Exh. 1], reflects that you accumulated, at least, 8 at- tendance 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, be- cause I don’t remember signing anything [concerning re- ceiving 10 points]. . . . . Q. [BY MCNEILL]: Do you recall signing that docu- ment [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. Madden’s testimony here suggests that she had given her no- tice 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 com- mute 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 sched- ules 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 geogra- phy. 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 Septem- ber 29, 1997, Operations Manager Laurie Dobson approved Madden’s discharge for having accumulated too many atten- dance points, noting that she was a probationer. Other manag- ers have added their signatures. The other employee change form, with updated computer data entries, carries her as a code “TN.” The code chart (GC Exh. 4), does not reflect what that code signifies, but TN appears to be an entry meaning “termi- nation.” 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 re- cord. It may even be that someone in the first line of supervi- sion considered her a quit, but the Company never got that message. Therefore, I reject Respondent’s contention that Madden re- signed. 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 $4882.42. 22 At the time of her hire and discharge in 1997, Madden lived on West Imperial Highway in southern Los Angeles. Her freeway com- mute to the Pomona yard would have been about 40 miles, through the heart of downtown Los Angeles. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846 Q. 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 General Counsel’s Exhibit 6. A comparison of that exhibit to the proposed backpay adjustments offered by Respondent demonstrates that they are in full agreement from the third quarter of 1997 to the third quarter of 2001. This dis- agreement begins with the fourth 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 at- tend child custody hearings. Those hearings arose from a di- vorce and her ex-husband’s attempt to seek custody. In re- sponse to her quit, the Regional Director has credited her in- terim earnings account from that point on as if she had re- mained 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 cred- ited 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 Mfg. Co. of Texas, supra. Accordingly, I find that the quit terminated Respondent’s back- pay obligation with respect to McQueen. Therefore, McQueen is entitled to the amount of net backpay not in dispute, i.e., $36,552.64. R. 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 third and fourth 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 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 rea- son 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 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’s Exhibit 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 docu- ment after being updated in the computer. (Mitchell Exh. 2.) 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 General Counsel’s Exhibit 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 enti- tled to the backpay set forth in appendix C-23, $951.01. S. 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 $9296.07 for the entire 4- 1/2-year period. He had substantial interim earnings through- out 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 re- hire 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 Ry- der/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, con- FIRST TRANSIT, INC. 847 tains a phone number with the same area code, but with a dif- ferent 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: Q. [BY 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 conscien- tious 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. 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. A. I must have [acquired] all of the points. They probably—. . . terminated me. . . . . Q. [BY 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 ap- preciate the difference in earning points under the atten- dance policy, and abandoning your job, and job abandon- ment 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 re- call these dates and stuff. Q. Mr. Montoya, since you can’t recall, isn’t it possi- ble then, that you didn’t come to work during that time pe- riod, and that the Company terminated you for job aban- donment? 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. . . . . 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 re- ceived 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? DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848 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 sev- eral 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 week- end 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 arrange- ment, 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 truckdriver on the same day he applied, December 6, only 4 days after the letter was sent. That confluence of cir- cumstances suggests to me that he did receive Montoya’s Ex- hibit 1 shortly after it was sent and immediately set out to ob- tain a new job. It also means that his recollection is untrust- worthy or selective. In the circumstances, I am unwilling to credit Montoya’s tes- timony 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 dis- patcher. 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. T. 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 busdriver 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 8 of the 10 points which would cause her discharge. See O’Neal’s Exhibit 2. It may well be that the supervisor was then unaware of the June 22 absence, which put O’Neal at 10, not 8 points. Shortly thereafter, the situation came to its head. O’Neal testified: Q. [BY 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 Dob- son] 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 un- able 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 Section 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 un- pleasant as to force the employee to resign;24 and second, that the burden was imposed because of the employee’s union ac- tivities. See Crystal Princeton Refining Co., 222 NLRB 1068 (1976). This case arises not under Section 8(a)(3), but Section 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 themselves onerous. Their only aim was to get drivers to work on time so the sched- ules 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 24 In some fact patterns this requirement can be characterized as forcing the employee to make a Hobson’s choice, either quit or aban- don one’s Sec. 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. FIRST TRANSIT, INC. 849 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. Ken- tucky River Medical Center, 340 NLRB 536, 598–599 (2003) (Taulbee) (discriminatory warnings in violation of Sec. 8(a)(1) not sufficient provocation to warrant employee abandoning work, i.e., effectively resigning job). Indeed, O’Neal’s resigna- tion can easily be seen as her own act of unexpected superven- tion. 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. U. Marta Perez Marta Perez was a busdriver 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 in- volved and the company’s policy was to discharge any driver with two accidents, even though the incident caused no dam- age. (Indeed, her first accident did not involve any negligence on her part.) This does not qualify as a deliberate effort to re- move 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 $4075.50, one-fourth of which the compliance offi- cer allocated to each quarter for that year. In November 2000, she began searching for work and on December 5 obtained a 25 Cf. Electrical Workers Local 1701 (Dynalectric Co.), 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 1 year and 10 months is mistaken. That conclu- sion is supported by the Social Security Administration records. Perez Exh. 1. See also the colloquy between counsel and myself at p. 1157 ff. job with the Walgreen Company where she still works. Her Walgreen interim earnings for the last quarter of 2000 was $475. 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. Yr./Qtr. Gross Backpay Interim Earnings Net Backpay 2000/Q127 $4,425.48 $3,779.53 $645.95 2000/Q228 340.42 296.01 44.41 2000/Q3 0 0 0 2000/Q429 1,021.26 475.00 546.26 Net Back- pay/2000 $1,236.62 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. V. 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 appropri- ate: $23,487.85. W. 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 4-1/2 months. The threshold issue presented here is Respondent’s defense based on her testimony at the hearing that she had some difficulty finding interim employ- ment 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 testimony was untrue. Her job 27 The interim earning figure is assumed to be the same as in the fourth quarter of 1999. 28 These figures represent the first week’s work in the second quarter. 29 The gross backpay figure covers 3 weeks—two in November and one in December searching for work. 30 Robinson stated: Q. [BY SILVERSTEIN]: So, when you fill out an application and it asks, if you have had any prior felonies, you have to an- swer, yes. Right? A. [WITNESS ROBINSON]: Yeah. Q. Okay. Were you asked that question when you were hired, at Ryder/ATE? A. Yeah. MCNEILL: Objection. She was hired. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850 application, in evidence as Respondent’s Exhibit 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 assis- tant 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, Respon- dent filed a motion to reopen the record to receive a hiring in- vestigation report performed by a preemployment 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 authenti- cated, 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, un- doubtedly because her testimony on the subject was unex- pected. 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 fea- ture which is identical to that set forth in Hoffman Plastic Com- pounds, 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 JUDGE KENNEDY: She was hired and she answered it. SILVERSTEIN: I understand. JUDGE KENNEDY: Okay. Q. [BY SILVERSTEIN]: And what did you put down when you were asked that question, at Ryder/ATE? A. Yes. protection under Section 7, entitled to the standard remedy of reinstatement with backpay? In Lenkurt, supra, Administrative Law Judge Jerrold Shapiro observed that employee Maldonado’s name had been on a prounion employee list which had been supplied to manage- ment, and a prima facie 8(a)(3) case had been otherwise made out. Maldonado, however, had falsified his employment appli- cation in order to conceal a conviction, suspended sentence, and a sentence of 3-years probation for grand theft. When dis- charged, he had recently passed his 90-day employment proba- tion period. The employer, actively looking for 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 convic- tion and retained a professional investigating company to look into the matter. When the firm reported the conviction to man- agement, 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 miscon- duct of Maldonado was serious and substantial, that the Com- pany’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 docu- mented Maldonado’s misconduct reveals its awareness that the legality of the discharge was open to question, but on bal- ance 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, 982.] In Cuneo, supra, 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 Re- spondent would not have hired Brite had it known of his mis- conduct in falsifying his employment application, we do not find that this misconduct automatically bars an award of back- pay. Rather, we limit Brite’s right to backpay to the date the Respondent acquired knowledge of Brite’s misconduct, con- sistent 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 Respon- dent 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 FIRST TRANSIT, INC. 851 into account his misconduct and granted him reinstatement and full backpay. On the other hand, relieving the Respon- dent of all backpay liability, including that for the period when the Respondent had no knowledge of Brite’s mis- statement and had no lawful reason to fire him, would provide an undue windfall for the Respondent. Accord- ingly, as we have done in similar cases, we shall terminate Brite’s backpay on the date that the Respondent first ac- quired 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 foot- notes omitted.] [298 NLRB 856, 856–857.] 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 falsifica- tion and concealment of a criminal matter. In Cuneo, the em- ployee had misrepresented his prior employment record and 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 pas- sionate 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 tribu- nal,” United States v. Norris, 300 U.S. 564, 574 (1937), and may put the factfinder and parties “to the disadvantage, hin- drance, and delay of ultimately extracting the truth by cross- examination, by extraneous investigation or other collateral means.” Ibid. Perjury should be severely sanctioned in appro- priate cases. . . . . When Congress expressly delegates to an administra- tive agency the authority to make specific policy determi- nations, 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 re- medial authority throughout its long history of administer- ing 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 spa- cious 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 ex- cuse 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 re- lief 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, e.g., 304 NLRB at 598, and the Board affirmed those credibility findings, id. at 585. The unfairness of sanctioning Manso while indirectly re- warding 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 dis- putes 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 rein- statement, is well within its broad discretion. [510 U.S. 317, 323–325.] None of these cases definitively deals with the problem pre- sented 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 em- ployer 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 discov- ered 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 7-1/2 years ago. In other cases, the Board has observed that where an em- ployee has obtained his job through the use of a false statement in his application, it is not repugnant to the purposes and poli- cies of the Act to order less than reinstatement with backpay. Ohio Ferro Alloys Corp., 209 NLRB 577 (1974) (citing South- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852 ern Airway Co., 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 re- garding previous discharges and a “drinking problem,” con- cluded 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). Greg- ory, however, was overruled on that very point by Cuneo, su- pra. 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 prac- tice 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 ig- nored.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 dis- crimination for it did not arise for the first time at the compli- ance stage. In ABF Freight, the Board found the employee’s misbehavior to be merely an excuse for the discrimination vis- ited 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 prevarica- tions 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 Ry- der/ATE into hiring her by concealing her disqualifying convic- tion and who later compounded the false statements before me. Therefore, I must construe Cuneo in light of ABF Freight, and strike a balance between the two extremes. Cuneo pro- vided 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 em- ployer 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 enti- tled to the full backpay set forth in the specification since Re- spondent 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 Ry- der/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 height- ened duty of care to protect its passengers. California Civil Code § 2100.32 It would no doubt be subject to liability for 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). 32 The statute states: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide every- thing necessary for that purpose, and must exercise to that end a rea- sonable degree of skill.” See also Allen v. Matson Navigation Co., 255 F.2d 273 (9th Cir. 1958), applying this statute. 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 consti- tute 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 back- ground at the time of her hire.33 Therefore, I will issue a limited backpay remedy for Robin- son. The remedy will provide backpay for a reasonable amount of time deemed to equal the time it would have taken for Ry- der/ATE or Respondent to have learned of her criminal back- ground and her deception about it. To be sure, such a determi- nation 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: Yr./Qtr. Gross Backpay Interim Earn- ings Net back- pay 1997/Q2 $2,016.9 6 0 $2,016.96 1997/Q3 4,370.08 0 4,370.08 1997/Q4 4,643.00 0 4,643.00 1998/Q1 4,779.78 0 4,779.78 1998/Q235 2,389.89 $3,037.20 0 Total Net backpay $15,809.82 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. Robin- son’s net backpay is $15,809.82. X. Deborah Sleets Deborah Sleets is the subject of a modified backpay specifi- cation 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. 33 In reaching this conclusion, I have followed the same methodol- ogy seen in Cuneo and Gregory which was not reversed on this point. 34 In Clayton Willard Sales, 126 NLRB 1325, 1326–1327 (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 con- trary 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.” (Inter- nal footnotes omitted.) 35 The figures in this row are derived from calculating the weekly pay rate from the quarterly figures set forth in app. C-30 and multiply- ing it by 6-1/2 weeks, the end of the revised backpay period. FIRST TRANSIT, INC. 853 Respondent makes three principal arguments. First, it asserts that Sleets was a probationary employee having no reinstate- ment 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 ar- gument 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 con- victed 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 Ry- der/ATE dispatcher. Indeed, Assistant General Manager Sal- vador Garcia said that crimes of that nature were given consid- eration, and were not always a bar. However, when Garcia began to testify about Sleets, Re- spondent’s counsel made an offer of proof concerning a differ- ent 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 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 convic- tion 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’ 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 mis- demeanors. 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 36 Sleets worked as a dispatcher only for a short time. She was a driver when she was discharged. 37 See generally Cal. Penal Code §1203.4 (2004). have no obligation to reveal it.38 Even Respondent must con- cede 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 cate- gory. Robinson’s conviction was for robbery, a crime against persons. Sleets’ crime, if the offer of proof were to be ac- cepted, was a concealed firearm. It does not appear to have been a crime against any person. Given the fact that Ry- der/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, Re- spondent has not provided sufficient proof that Sleets’ applica- tion was fraudulent. Accordingly, Respondent’s argument is unpersuasive. As for its last contention, that Sleets quit an interim em- ployer 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 Bernar- dino 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 expen- sive 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. Contrary to Respondent, I find that her quit was reasonable in the circumstances. Indeed, she eventually sought compara- ble 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 de- cided that further pursuit was fruitless. She participated in the GAIN program as a condition of public assistance; that pro- gram 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. 38 See generally Cal. Welf. & Inst. Code §1772 (2004). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854 Under these facts, I am unable to conclude that Sleets re- moved 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 re- cord as General Counsel’s Exhibit 12, is correct. Under that specification, Sleets is entitled to the full amount, $41,495.64. Y. Daphne Thomas Daphne Thomas’ 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 specifica- tion has accounted for this time by making appropriate adjust- ments for the November 1998–July 1999 timeframe. Respon- dent 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’ home in Fontana. She testified that had she found employment near home, she probably would have remained at home; indeed, before leaving with her hus- band she had started to look for work near Fontana, signing up with two temp agencies, an employment agency, and register- ing 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 ap- plied 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 contin- ued 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’ 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. However, I find that the circumstances carry self-evident proof of its reasonableness. Their home was in the Los Ange- les area. When her husband’s short-term job in Tulare ended, they both expected to return to that home. Indeed, Respon- dent’s argument would have the Board require Thomas to re- main in Tulare while her husband returned to the family resi- dence. This argument borders on the silly. She took the Laidlaw job with the idea that it would be per- manent, but she was terminated from Laidlaw after having a disagreement with a supervisor concerning the wearing of ear- rings on the job. She had no attendance issues, but shortly after 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. 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, as- serts 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 em- ployment 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” ab- sentee. 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. Accord- ingly, I find that Thomas is entitled to backpay as calculated in appendix C-32. That figure is: $51,971.66. Z. 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 speci- fication sets his net backpay at $27,152.49. AA. 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. BB. Maria Velasquez Maria Velasquez was one of the named employees in the un- derlying unfair labor practice proceeding and was found to be a victim of the illegally imposed attendance program. Velasquez’ 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 mar- ket due to school attendance, a disability due to a difficult preg- nancy, and a decision to withdraw from the job market to tend to her infant. Respondent preliminarily asserts that because Velasquez quit a job on October 17, 1998, with Cames Security after her preg- nancy-related disability period ended, it is entitled to an interim earnings offset at the Cames’ rate from that date until she ob- tained 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 diffi- culties, 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 ac- FIRST TRANSIT, INC. 855 cepted, it would only have applied to the remainder of the quar- ter since she chose not to work during 1999, and it appears that the Cames’ rate would later be exceeded in quarters beginning in 2000. Respondent’s principal objection to the specification is its belief that beginning with the first quarter of 2000, Velasquez became a full-time student, attending classes at Mt. San Anto- nio 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 wel- fare-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 workstudy program which allowed her to be both a student and an employee. Under the program, GAIN paid 75 percent of her wages at two different jobs: Marcia’s Family Day Care Center (from 3 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 con- tinued until the semester ended in June. At that point the Community College Foundation hired her as a regular em- ployee. 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 in- tended 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 her- self 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 employ- ment). 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 compara- ble to those before the discharge); Sargent Electric Co., 255 NLRB 121, 123 (1981) (a part-time student going to school from 6–10 p.m. and working an 8-hour shift did not withdraw from the labor market). Accordingly, I find the backpay specification set forth in ap- pendix C-36 to be an accurate assessment of Velasquez’ net backpay: $32,141.06. 40 Her connection to the GAIN program and to the community col- lege gave her access to child care support during this timeframe. CC. 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. Accord- ingly, it concedes that the specification is correct. Woods’ backpay period begins on June 3, 1997, and ends on January 23, 2002. The specification sets her net backpay at $54,881.28. DD. 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 Respon- dent 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 dis- cussed 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856 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 pro- ceedings 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 Flor- ida 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 decision41 is: $840,347.82 41 If no exceptions are filed as provided by Sec.102.46 of the Board’s Rules and Regulations, the findings, conclusion, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.