California Gas Transport, Inc.

CALIFORNIA GAS TRANSPORT 355 NLRB No. 73 465 California Gas Transport, Inc. and General Team- sters (Excluding Mailers), State of Arizona, Lo- cal 104, an affiliate of the International Broth- erhood of Teamsters. Cases 28–CA–19645, 28– CA–19666, 28–CA–20014, 28–CA–20082, and 28–CA–20177 August 10, 2010 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER On April 23, 2009, Administrative Law Judge John J. McCarrick issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions as 1 We reject the Respondent’s contention that the judge precluded it from making an offer of proof regarding expected testimony from its expert witness, a certified public accountant. In fact, the Respondent made its offer. The Respondent’s attorney clearly explained on the record that the witness would have testified that, in his opinion, because the Board relies on gross wages to assess an employer’s initial backpay liability, the interim earnings of self-employed discriminatees likewise should be measured by their gross revenue rather than their net revenue, the Board’s traditional measure. The Respondent did not make a fur- ther request to submit a more detailed written offer of proof. See, e.g., St. George Warehouse, 348 NLRB 1037, 1038 (2006). We also disagree with the Respondent’s contention that the judge erred by refusing to hear the testimony. Whether to permit expert tes- timony is a question that is committed to the discretion of the trial judge. We do not believe the judge abused his discretion here. “It is well established that only net earnings from self-employment are con- sidered to be interim earnings deductible from gross backpay.” Re- gional Import & Export Trucking Co., 318 NLRB 816, 818 (1995). The use of gross wages in the backpay calculation reflects the fact that in the employment relationship most costs of doing business are borne by the employer. The use of net earnings for purposes of mitigation in the case of a self-employed discriminatee, by contrast, reflects the fact that the self-employed bear their own costs of doing business. Thus, in most instances, gross wages minus net earnings accurately reflects what a discriminatee lost as a result of the violation of the Act. Contrary to the Respondent’s contention, the witness was not offered to testify about the validity of one of the discriminatee’s specific tax deductions. As the Respondent’s attorney explained on the record, the witness “was going to speak to the issue of the methodology that was used here.” Even if the witness might have referred to individual tax deductions, it is apparent that he would have done so only in the context of contesting that methodology. In any event, the Respondent’s exceptions brief actually contests that methodology based on the essential point of its expert’s proffered testimony, including a calculation of the difference in backpay using the Respondent’s suggested approach. Likewise, its brief includes an argument over an employee’s, Ramon Hernandez, specific tax deductions. In these circumstances, we find that the judge did not abuse his discretion by declining to hear the testimony of the modified and to adopt the recommended supplemental Order as modified3 and set forth in full below. expert witness and, that, in any case, the Respondent was not preju- diced by the judge’s ruling. Finally, as to employee Hernandez, we acknowledge that there may be some doubt about the correctness of his 2005 tax return but, unlike our colleague, we shall not rely on that uncertainty to reduce Hernandez’ backpay. See Midwestern Personnel Services, 346 NLRB 624, 625 (2006), enfd. 508 F.3d 418 (7th Cir. 2007) (“Doubts, uncertainties, or ambiguities are resolved against the wrongdoing respondent.”). Contrary to his colleagues, Member Schaumber finds that the judge abused his discretion in denying the Respondent the opportunity to adduce expert testimony. First, he disagrees that the Respondent’s proffer was as constrained as his colleagues imply; the Respondent’s counsel specifically stated that the expert would offer testimony as to “what we submit is some very aggressive deduction taking,” which on several tax returns reduced the discriminatees’ income from over $100,000 down to $10,000 to $12,000. That proffer was specific enough to encompass testimony as to deductions claimed by individual discriminatees, the validity of which the expert clearly could have challenged. Moreover, to the extent the Respondent sought to estab- lish, through expert testimony, that the Board’s extant methodology to backpay calculations is flawed, there is nothing improper or inappropri- ate about that. Indeed, my colleagues recently have sua sponte solicited amicus briefs seeking input from interested parties and experts as to whether the Board should alter its well-established method of comput- ing interest on backpay. (Press release titled: “NLRB invites amicus briefs in pending cases—At issue: Electronic posting of notices, and compound interest;” May 14, 2010.) Precluding the Respondent a similar opportunity to present its case to the Board seems manifestly unjust. That is not to say that the judge could not have limited the expert’s testimony if it excessively delayed the hearing; however, to preclude it altogether was unwarranted overkill. Even in the absence of expert testimony, however, I would reduce the backpay of discrimina- tee Ramon Hernandez. His 2005 Federal income tax return claimed a $10,500 schedule C business deduction, yet reflected absolutely no schedule C business income. Not surprisingly, Hernandez was unable to offer any explanation for the deduction, which I would disallow as an offset to his gross income. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent also contends that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful review of the judge’s decision and the entire record, we are satisfied that the Respon- dent’s contention lacks merit. 3 The judge calculated discriminatee Efren Munoz’ backpay to be $10,769.32. The General Counsel and the Respondent agree that figure is incorrect, and that the correct amount of backpay due Munoz is $3,164.88. We shall modify the judge’s order accordingly. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 466 ORDER The National Labor Relations Board orders that the Respondent, California Gas Transport, Inc., El Paso, Texas, its officers, agents, successors, and assigns, shall pay each of the following persons backpay in the amount shown opposite their name, plus interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and State laws: Jose Raul Almaraz $ 6,026.54 Raul Almaraz 6,446.76 Alonso Alonso 38,282.24 Rogelio Delgadillo 1,070.00 Rosario Gastelum 23,679.95 Jacinto Hernandez 21,546.56 Ramon Hernandez 26,288.94 Lorenzo Medina 13,454.08 Efren Munoz 3,164.88 Gonzalo Munoz 52,582.77 Robert Ryburn 12,565.64 TOTAL NET BACKPAY $205,108.36 Mara-Louise Anzalone, Esq., for the General Counsel. Thomas J. Kennedy, Esq. and Michael C. Grubbs, Esq. (Sherman & Howard), of Phoenix, Arizona, for the Re- spondent. Kathy Tiihonen, Organizer, of Phoenix, Arizona, for the Charg- ing Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOHN J. MCCARRICK, Administrative Law Judge. On August 31, 2006, the Board issued its Decision and Order1 directing, inter alia, that Respondent make whole Rogelio Delgadillo, Robert Ryburn, Gonzalo Munoz, Efren Munoz, Alonso Alonso, Ramon Hernandez, Lorenzo Medina, Raul Almaraz, Jose Raul Almaraz, Rosario Gastelum, and Jacinto Hernandez for any loss of earnings or other benefits suffered as a result of the discrimination against them. Thereafter on November 7, 2007, the United States Court of Appeals for the Fifth Circuit issued its Judgment2 enforcing the Board’s Decision and Order. This case was tried before me in El Paso, Texas, on February 10–11, 2009, upon the amended compliance specification3 issued by 1 California Gas Transport, Inc., 347 NLRB 1314 (2006) 2 Fifth Circuit No. 06-60871, Unpublished Memorandum filed No- vember 7, 2007. 3 At the hearing counsel for the General Counsel moved to amend the amended compliance specification by offering revised App. A, pp. 2, 3, 4, 5, 6, 7, and 8, GC Exhs. 3 and 7, and backpay calculation sum- mary sheet, GC Exh. 2, which reflect adjustments to interim earnings for Alonso Alonso, Jacinto Hernandez, Lorenzo Medina, Raul Almeraz, Rosario Gastelum, Ramon. The motion to amend was granted. After the close of the hearing, in her brief, counsel for the General Counsel the Regional Director for Region 28 of the National Labor Re- lations Board (the Board) on December 5, 2008. On December 24, 2008, Respondent filed its answer to the amended compli- ance specification and denied that the gross backpay calcula- tions due any of the discriminatees are correct. Having been unable to reach an agreement with the General Counsel con- cerning the amount of backpay due to the above-named dis- criminatees, Respondent, the Charging Party, and the counsel for the General Counsel entered into a stipulation on February 10, 2009, that provided the parties agreed that the gross back- pay for each discriminate set forth in the amended compliance specification was the amount of gross backpay due to the dis- criminatees. The parties further stipulated that the correct amount of net earnings for Rogelio Delgadillo was $1070 and for Raul Almaraz was $6446.76.4 The principal issue presented for decision is the correct amount of interim earnings to be offset against gross backpay owed to the discriminates Jacinto Hernandez, Lorenzo Medina, Jose Gonzalo Munoz, Jose Raul Almeraz, Robert Ryburn, Efren Munoz, Alonso Alonso, Ramon Hernandez, and Rosario Gastelum. In its brief, while Respondent appears to contend that the amount of interim earnings contained in the amended compliance specification for each of the above discriminatees is incorrect, in it makes no argument with respect to Robert Ry- burn or Efren Munoz. All parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my observation of the demeanor of the witnesses, and having con- sidered the posthearing briefs of the parties, I make the follow- ing Findings and Conclusions Nine drivers gave testimony concerning their search for work following their September 13, 2004 terminations. Jacinto Hernandez After his discharge from his part-time5 job with Respondent, Jacinto Hernandez began to contact his friends who were driv- ers to look for work and submitted applications to several em- ployers as a driver. Hernandez lives in an impoverished area of El Paso, Texas, that has neither public transportation nor a phone. His termination left him unable to afford his car. Her- nandez, who is over 65 years of age, receives social security moved to amend the compliance specification to reflect more accurate net backpay figures for Gastelum. The motion to amend is granted. 4 On March 18, 2009, after the hearing, counsel for the General Counsel filed a Motion to Correct the Record. On March 24, 2009, Respondent filed its Response to General Counsel’s Motion to Correct the Record. Finally on March 27, 2009, the parties filed a Joint Motion to Correct the Record. In the joint motion, the parties agree that the testimony that begins on p. 116 of the transcript is that of Ramon Her- nandez and the testimony on p. 24 is that of Jacinto Hernandez. The parties further agree that the parties stipulated at the hearing as to the net backpay of Raul Almeraz and that it was Jose Raul Almeraz who testified at the hearing. The transcript will be corrected as reflected in the parties joint motion. 5 GC Exh. 1(j), appendix A reflects that while employed by Respon- dent, Hernandez worked 82 percent of the hours of other truckdrivers. CALIFORNIA GAS TRANSPORT 467 benefits of $460 per month. It appears that in October 2004, Hernandez first obtained part-time work with Texas LPG haul- ing gas. Texas LPG told Hernandez that the work would be- come full time but despite having filled out applications with other employers, he was offered nothing but part-time work until July 2005. Lorenzo Medina The day after he was fired, Medina began his job search at several trucking companies and filled out applications. He called and followed up on his applications on a daily basis thereafter until he was hired in December 2004 by MTI as a full-time concrete truckdriver. Medina worked for MTI for 2 months until he got a better paying job with MTS on Janu- ary 30, 2005. Medina continues with MTS to the present. Jose Gonzalo Munoz Munoz applied for work within 2 weeks after he was termi- nated. Munoz was hired by MTS about 6 weeks after he was fired and worked for MTS full time for about 6 to 8 months. Thereafter, in about April 2005, Munoz bought his own truck and became self-employed to the present. Jose Almeraz Immediately after his termination, Almeraz made application as a driver with at least eight trucking companies over a 10-day period. Three weeks later Southwest Freight Lines offered Almeraz a full-time job as a driver. Almeraz was with South- west Freight until 2006 until it closed when he got a job with Texas LPG in April 2006. Robert Ryburn A few days after his September 24, 2005 termination, Ry- burn called Texas LGP about a job. A week later Ryburn called Coastal and filled out an application. Ryburn was denied work at Coastal due to a bad reference from Respondent which was found by the Board herein to have violated Section 8(a)(1) of the National Labor Relations Act (the Act). Three weeks later Manuel Huerta Trucking hired Ryburn in November 2004. Ryburn worked for Huerta until January 2005 and went to work for BJ Cecil for a year. Ryburn then was hired by Asarco Min- ing in April 2006 and Khalil Bottling, part time in May 2006. Ryburn lived in Nogales, Arizona, at the time of his termina- tion. Nogales is 380 miles from El Paso. Efren Munoz Three or 4 days after he was fired Munoz applied at Jobe as a driver. On October 20, 2004, Munoz was hired by MTS as a full-time driver and has been employed there to date. Alonso Alonso As soon as he was fired Alonso began looking for work and filled out applications with at least six trucking companies. After about a month, Alonso was hired as a full-time driver by Robert Barassa who leased his trucks to UPT. Later in 2005, Alonso became an owner-operator and leased his truck to UPT. Ramon Hernandez One week after his termination, Hernandez applied for work at several other trucking companies, including UPT. One month after his termination, UPT hired Hernandez as a full- time driver. After 6 months with UPT, Hernandez was fired in April 2005 to an accident on the job and Hernandez was off work for 3 months due to an injury in this accident for which he received worker’s compensation. In about August 2005, Her- nandez became an owner-operator until May 2006. About 2 weeks later, Hernandez began searching for work as a driver and was not hired after a few months. Rosario Gastelum Gastelum applied for work with several trucking companies 7 to 10 days after his termination. Between September and December 2004, Gastelum applied for work at least once a week. Gastelum was initially hired as a full-time driver in January 2005 by Far West. Gastelum was employed by Far West for 5 to 6 months and with two other companies as a full- time driver in 2005. From 2006 to the present, Gastelum has been with five or six other trucking companies and was forced to seek new employment because the companies went out of business. Gastelum, who resides in Mexico, was extremely difficult for the Region to communicate with and had, there- fore, not provided his tax returns at the time the compliance specification issued. For this reason, the compliance specifica- tion included interim earnings for Gastelum that were based on an average of the remaining drivers’ interim earnings. Gaste- lum appeared at hearing, however, and was able to procure his tax records from the Internal Revenue Service office on the same day. These records are contained in Respondent’s Exhibit 9. Based on these records, the Region has been able to deter- mine a more accurate net backpay figure for Gastelum, which is set forth below: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468 Year Qtr. Gross Backpay Interim Earnings Interim Expenses Net Interim Earnings Net Backpay Medical/ Other 2004 3rd 1,363.41 1,215.56 0.00 1,215.56 147.86 0.00 2004 4th 9,879.59 6,506.81 0.00 6,506.81 3,372.78 0.00 2005 1st 9,663.00 6,729.24 0.00 6,729.24 2,933.76 0.00 2005 2nd 9,663.00 6,804.85 0.00 6,804.85 2,858.15 0.00 2005 3rd 9,663.00 6,880.46 0.00 6,880.46 2,782.54 0.00 2005 4th 9,663.00 6,880.46 0.00 6,880.46 2,782.54 0.00 2006 1st 8,934.60 4,595.34 0.00 4,595.34 4,339.26 0.00 2006 2nd 8,934.60 4,646.97 0.00 4,646.97 4,287.63 0.00 2006 3rd 1,363.00 1,187.56 0.00 1,187.56 175.44 0.00 Totals: 69,127.18 45,447.23 23,679.95 0.00 Respondent’s Challenge of Interim Earnings As part of its challenge to nine of the employees’ interim earnings, Respondent offered the testimony of Kathy Mundy (Mundy), a vocational expert with a Masters Degree in Vo- cational Rehabilitation Counseling. Most of Mundy’s expert testimony has been given before the Social Security Admini- stration and in Worker’s Compensation hearings where she is called upon to estimate the total number of jobs that may exist in a particular region to determine if an individual meets the definition of disabled. She admitted that none of her research involved the Nogales, Arizona area where dis- criminatee Ryburn lives. Mundy found that there were sig- nificant truckdriver positions during 2004–2006 in the El Paso, Texas area and that a driver should have been able to find employment within 2 weeks. In reaching her conclu- sions, Mundy considered the classified ads in the English language El Paso, Texas daily newspaper she sampled once a month from September 2004 to August 2006, the Bureau of Labor Statistics publication for truck driving positions in the El Paso area, the 8-percent unemployment figure for 2004– 2006 in El Paso, Texas, her discussions with an unnamed sales manager from one trucking company and information from unspecified persons familiar with the over-the-road trucking business. According to Mundy, any of the discrimi- natees should have been able to find a job within 2 weeks of commencing a job search. Mundy did not consider the dis- criminatees’ work history, qualifications, or licenses. Respondent also proffered the testimony of CPA Keven Jensen for the purportedly for purpose of explaining that the Board’s formula for determining net backpay for the self- employed discriminatees was inappropriate. Respondent argues that the Board used gross income to determine gross backpay and therefore should have used gross income, i.e., gross receipts without expenses, to determine interim earn- ings, for the self-employed discriminatees. Jensen’s testi- mony would have established that gross interim earnings should have been compared to gross backpay. Contrary to Respondent’s assertion in its posthearing brief, as set forth in Respondent’s offer of proof, Jensen was never offered as a witness for the purpose of explaining income tax deductions the discrimina- tees may have taken or to explain Internal Revenue Code sections. I rejected this testimony on the ground that the Board has long held that an appropriate measure of interim earnings for the self-employed is their net earnings, i.e., prof- its. Basin Frozen Foods, Inc., 320 NLRB 1072, 1075 (1996); Cliffstar Transportation Co., 311 NLRB 152, 169 (1993); Brown Co., 305 NLRB 62 (1991); and F. E. Hazard, LTD., 297 NLRB 790 (1990). Jensen’s testimony was not competent on this issue. Respondent was not precluded from questioning the accuracy of income tax returns of the self- employed discriminatees nor of offering Jensen’s testimony as a CPA concerning the accuracy of the tax returns. Analysis Applicable Legal Principals It is well settled that the finding of an unfair labor practice is presumptive proof that some backpay is owed, NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966), and that in a backpay pro- ceeding the sole burden on the General Counsel is to show the gross amounts of backpay due—the amount the employ- ees would have received but for the employer’s illegal con- duct. (Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 544 (1943). Once that has been established, “the burden is upon the employer to establish facts which would . . . miti- gate that liability.” NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). It is further well established that any formula which approximates what discriminatees would have earned had they not been discriminated against is ac- ceptable if it is not unreasonable or arbitrary in the circum- stances. Iron Workers Local 378 (Judson Steel Corp.), 227 NLRB 692 (1977); NLRB v. Brown & Root, Inc., supra at 452; East Texas Steel & Castings Co., 116 NLRB 1336 (1956); Avon Convalescent Hospital, 219 NLRB 1210, 1213 (1975). CALIFORNIA GAS TRANSPORT 469 The Board has long recognized the value of utilizing so- cial security records and income tax returns in determining interim income, and has found that “poor record keeping, uncertainty as to memory, and perhaps exaggeration” do not automatically disqualify an employee from receiving back- pay. Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966). Interim Earnings—Failure to Mitigate In addition to Respondent’s rejected argument that the Board used an inappropriate formula for determining interim earnings for self-employed discriminatees, Respondent con- tends that the discriminatees failed to mitigate their losses by failing to make a reasonable search for work, by voluntarily leaving work for lower paying jobs, and by making them- selves unavailable for work. Recently, in St. George Warehouse, 351 NLRB 961 (2007), a sharply divided Board majority reversed over 40 years of Board precedent dealing with the burden of proof with respect to mitigation of losses by discriminatees in backpay cases. Ignoring the availability of subpoenas to Respondent’s who wish to challenge the amount of interim earnings reported in the General Counsel’s backpay specifi- cation, the Board took the novel approach of requiring Gen- eral Counsel to produce witnesses or documents to establish the search efforts of unlawfully terminated employees if Respondent can show that there were substantially equivalent jobs available in the relevant geographical area. In apparent conflict with Essex Valley Visiting Nurses Assn., 352 NLRB 427, 438 (2008), where the Board held that classified ads and expert testimony, “is not sufficient to prove either that positions were available or that the nurses would have been successful in obtaining one” and its own recent conclusion in Grosvenor Resort, 350 NLRB 1197 (2007), that vocational expert testimony, “is too speculative to meet the Respondent’s burden of establishing that the backpay of certain discriminatees should be reduced,” under the St. George Warehouse standard, Respondent now can satisfy its burden to show that there are substantially equiva- lent jobs available in the relevant geographical area by call- ing a vocational expert as a witness to testify that there are a number of comparable jobs in the geographical area based on BLS statistics and classified ads. However, there is no re- quirement that the vocational expert interview the discrimi- natees to determine if the generic jobs are available for the discriminatee or if they would have likely been hired for specific jobs, contrary to established Board precedent. E & L Plastics Corp., 314 NLRB 1056, 1058 (1994); Delta Data Systems Corp., 293 NLRB 736, 737 (1989). As in St. George Warehouse, supra, here, Respondent has offered a vocational expert who testified that in the El Paso, Texas region there were significant numbers of truck driving jobs and that a driver should have found a job within 2 weeks. Contrary to counsel for the General Counsel’s argu- ment that Respondent’s vocational expert should not be cred- ited given the speculative nature of her testimony, the ab- sence of any testimony that the jobs she cited were available or that the discriminatees would have qualified for any of those jobs and notwithstanding the Board’s holdings in Essex Valley Visiting Nurses Assn, supra, and Grosvenor Resort, supra, given the Board’s holding in St. George Warehouse, supra, I am constrained to find that Respondent has satisfied its burden of showing that there were significant jobs in the El Paso, Texas area and that the burden has shifted to Gen- eral Counsel to show that each of the discriminates who lived in the El Paso area made a reasonable job search.6 Further, in Grosvenor Resort, 350 NLRB 1197 (2007), the Board concluded that a discriminatee must commence his search for interim employment within 14 days of his unlaw- ful termination or face a tolling of backpay. Concerning the voluntary quitting of interim employment, the Board holds that when a discriminatee voluntarily quits interim employment, the burden shifts from the Respondent to the Government to show that the decision to quit was rea- sonable. Cable Car Advertisers, 336 NLRB 927, 931 (2001). Further a termination from employment does not constitute willful loss of employment. There must be evidence of delib- erate or gross misconduct by the discriminatee. Ryder Sys- tem, 302 NLRB 608, 610 (1991). It is also clear that being unable for work due to workers compensation injuries tolls backpay during the period of disability. City Disposal Sys- tems, 290 NLRB 413 fn. 2 (1988). It is likewise the law that an employee who for interim employment undertakes self employment does not result in the equivalent of a willful loss of earnings, but self-employment is to be treated as other interim employment. Cliffstar Transportation Co., 311 NLRB 152, 169 (1993); Heinrich Motors, 166 NLRB 783 (1967). I turn now to Respondent’s individual contentions with re- spect to why backpay should be reduced for its employees. Jacinto Hernandez Respondent argues that Hernandez failed to make a rea- sonable search for full-time employment. When employed by Respondent, Hernandez worked about 82 percent of the hours of other discriminatees. The record reflects that Hern- dandez termination caused him to lose his car and that he walked a 1-1/2 miles to and from his interim employment despite the fact that Hernandez is over 65 years old and re- ceives social security benefits. Under these circumstances, I find that Hernandez engaged in a reasonable job search immediately after his unlawful termination and secured employment in October 2004 that was substantially equivalent to his work with Respondent given the fact that he worked part time for Respondent, given the limitations placed on his job search as a result of losing his car due to his termination, together with his age and the fact that he received social security payments. Cassis Man- agement Co., 336 NLRB 961, 968 (2001). I find that Her- nandez began his job search immediately after his termina- tion by Respondent and that his termination was the proxi- mate cause of his loss of transportation, mitigating the fact that he did not find full-time employment until May 2005 6 Respondent has failed to meet its burden of showing that there were significant numbers of jobs in the Nogales, Arizona area where discriminatee Ryburn lived. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470 and mitigating and truncating his job search after his termi- nation. Grosvenor Resort, supra. Lorenzo Medina Respondent contends that Medina did not engage in a rea- sonable job search and made no applications for interim em- ployment until November 2004. Contrary to Respondent’s assertion, Medina began to search for work the day after he was fired, satisfying the 2-week requirement of Grosvenor Resort, supra. Moreover, Medina made daily calls to em- ployers searching for work until he was hired in December 2004, satisfying the St. George Warehouse, supra, require- ment. Jose Gonzalo Munoz Respondent contends that Munoz did not make a reason- able job search, that he voluntarily quit interim employment to seek self-employment and that his interim earnings should be reduced as a result of his failure to promptly seek work and by voluntarily quitting his employment. Again contrary to Respondent’s assertion, Munoz began his job search immediately after he was fired. About 2 weeks after his termination, MTS offered him a job and he began to submit the necessary paperwork. It took about 6 weeks for MTS to put Munoz to work. Since MTS offered him a job, Munoz stopped looking for other work. Unlike the facts in Grosvenor Resort, supra, here, Munoz was of- fered a job within 2 weeks of his termination, excusing any further job search efforts. It is likewise the law that an employee who for interim employment undertakes self employment does not result in the equivalent of a willful loss of earnings, but self- employment is to be treated as other interim employment. Cliffstar Transportation Co., 311 NLRB at 169; Heinrich Motors, 166 NLRB 783 (1967). Thus, unlike the situation in Cable Car Advertisers, 336 NLRB 927, 931 (2001), Munoz’ seeking self-employment is not the equivalent of voluntarily quitting, which would trigger the General Counsel’s obliga- tion to show that the quit was reasonable. Respondent’s argument that the appropriate measure of in- terim earnings for a self-employed person should be gross income is of no avail as discussed above. Profits, i.e., gross revenue minus expenses, are the correct measure of interim earnings for the self-employed. Cliffstar Transportation Co., supra. Jose Almeraz Respondent contends that Almeraz’ had greater interim earnings than gross backpay and that he should not be cred- ited7 with having made a reasonable job search. I find that 7 Respondent contends that Almeraz was less than truthful con- cerning payments he received from interim employment with Texas LPG. Almeraz testified truthfully that he received a salary from Texas LPG but denied receiving cash per diem until shown a docu- ment to refresh his recollection. At that time Almeraz admitted receiving $45 per day for expenses when entering Mexico. I am not convinced that Almeraz was untruthful when asked about “per diem” rather than simply not understanding that he was being asked about receiving payment for his expenses. Almeraz made a reasonable job search within days of his termination by searching out and making application with at least eight employers over a 10-day period and securing em- ployment in 3 weeks. The burden remains with Respondent to show that Almeraz failed to mitigate his loss of earning and I find that Respondent has failed to show any evidence that the calculations offered by the General Counsel in the amended backpay specification are not correct with respect to Almeraz’ quarterly calculations of interim employment. Robert Ryburn Respondent makes no argument in its brief concerning Ryburn. I find that Respondent has failed to satisfy its bur- den of showing that there were substantially equivalent jobs in the Nogales, Arizona area. Thus, the burden does not shift to the General Counsel to establish that Ryburn made a good-faith effort to find work. Respondent has failed to offer proof that the interim earnings set forth in the amended backpay specification are incorrect. Efren Munoz Respondent makes no argument in its brief concerning Efren Munoz. While Respondent has satisfied its burden of showing that there were substantially equivalent jobs in the El Paso, Texas area, the General Counsel has established that 3 or 4 days after he was fired Munoz applied for work at Jobe as a driver and at MTS. On October 20, 2004, Munoz was hired by MTS as a full-time driver and has been em- ployed there to date. I find that Munoz made a good-faith effort to find work. Respondent has failed to offer proof that the interim earnings set forth in the amended backpay speci- fication are incorrect. Alonso Alonso Respondent takes the position that since Alonso sought in- terim employment as a self-employed driver rather than con- tinue as an employee of Robert Barassa, this constitutes a failure to mitigate lost earnings. There is no dispute that Alonso made a good-faith search for employment immedi- ately after his termination and secured employment with Barassa. Later, Alonso became an owner operator, leasing his truck to UPT in 2005. As with Jose Munoz, Alonso did not voluntarily quit his employment but sought out self-employment. An employee who undertakes self-employment does not result in the equivalent of a willful loss of earnings, but such self- employment is to be treated as other interim employment. Cliffstar Transportation Co., 311 NLRB at 169; Heinrich Motors, supra. Thus, unlike the situation in Cable Car Ad- vertisers, 336 NLRB at 931, seeking self-employment is not the equivalent of voluntarily quitting, which would trigger the General Counsel’s obligation to show that the quit was reasonable. Further, Respondent’s argument that only gross receipts from self-employment should be considered for interim earn- ings is rejected. Cliffstar Transportation Co., supra. Ramon Hernandez Respondent argues that Hernandez’ backpay should be re- duced since he was terminated from his employer UPT in CALIFORNIA GAS TRANSPORT 471 April 2005 for a work-related truck accident that constitutes willful or gross misconduct, that his backpay should be tolled while he received worker’s comp benefits for 3 to 4 months and that Hernandez made an improper deduction from his Federal Income Tax return for 2005 increasing his income by $10,500. There is no evidence concerning the circumstances of the truck accident in April 2005 that led to Hernandez’ termina- tion from UPT. Respondent must show that a termination from employment was for deliberate or gross misconduct by the discriminatee. Ryder System, 302 NLRB 608, 610 (1991). Respondent has failed to show that the accident for which Hernandez was terminated was the result of deliberate or gross misconduct. Thus, Hernandez’ backpay will not be tolled following his termination in April 2005. However, the Board has held that being unable to work due to worker’s compensation injuries tolls backpay during the period of disability. City Disposal Systems, 290 NLRB 413 fn. 2 (1988). Thus, for the period from April 1 to July 1, 2005, the second quarter of 2005, backpay will be tolled. As to the alleged improper deduction in 2005, Hernandez 2005 Federal Income Tax return8 reflects income of $15,499. The schedule C form reflects no income but $10,500 in busi- ness expenses for Hernandez’ trucking company for fuel costs. The schedule F form shows income of $17,841 for Hernandez’ trucking company which is also shown on the 1040 form at line 17. I find nothing improper about the de- duction for expenses claimed by Hernandez. Rosario Gastelum Respondent claims that Gastelum did not make a proper job search and that he voluntarily quit interim employment, however, the record reflects that Gastelum applied for work with several trucking companies 7 to 10 days after his termi- nation and between September and December 2004, Gaste- lum applied for work at least once a week. Gastelum was initially hired as a full-time driver in January 2005 by Far West. This constitutes a good-faith effort to mitigate dam- ages under Grosvenor Resort, supra. 8 R. Exh. 8. Gastelum quit his first job after a few months and imme- diately secured another job with better pay. There is no evi- dence that Gastelum was out of work more than a week or two between jobs and the reason for working for so many employers was because they went out of business rather than because Gastelum voluntarily terminated his employment. The General Counsel recalculated Gastelum’s interim earnings based upon Federal Income Tax returns Gastelum provided at the hearing. Respondent’s contention that all of Gastelum’s 2006 earnings should be offset against gross backpay for the first and second quarter and the partial third quarter of 2006 is simply not supported by the law. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended9 SUPPLEMENTAL ORDER It is hereby ordered that Respondent, California Gas Transport, Inc., El Paso, Texas, forthwith pay to each of the following persons backpay in the amounts set opposite their name, plus interest computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), as required by the Board’s Order of August 31, 2006: Jose Raul Almaraz $ 6,026.54 Raul Almaraz 6,446.76 Alonso Alonso 38,282.24 Rogelio Delgadillo 1,070.00 Rosario Gastelum 23,679.95 Jacinto Hernandez 21,546.56 Ramon Hernandez 26,288.94 Lorenzo Medina 13,454.08 Efren Munoz 10,769.32 Gonzalo Munoz 52,582.77 Robert Ryburn 12,565.64 TOTAL NET BACKPAY $212,712.28 9 In the event no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusion, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes