First Transit, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 2007

350 N.L.R.B. 825 (N.L.R.B. 2007)

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 BOARD826
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 BOARD828
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 BOARD830
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 BOARD832
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 BOARD834
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 BOARD836
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 BOARD838
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 BOARD840
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 BOARD842
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 BOARD844
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 BOARD846
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 BOARD848
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 BOARD850
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 BOARD852
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 BOARD854
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 BOARD856
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.