Harran Transportation Co.

National Labor Relations Board - Board Decisions

Dec 30, 1999

330 N.L.R.B. 369 (N.L.R.B. 1999)

HARRAN TRANSPORTATION CO. 369
Harran Transportation Co., Inc. and John Cantidate.
Case 29–CA–17884
December 30, 1999
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On July 16, 1999, Administrative Law Judge Margaret
M. Kern issued the attached supplemental decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions and a sup-
porting brief. The Respondent filed an answering brief
in opposition to the cross-exceptions, and the General
Counsel filed a reply brief to the exceptions.
The National 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 exceptions, cross-
exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions as modified
and to adopt her recommended Order2 as modified.
The judge awarded backpay to discriminatee John
Cantidate for the entire backpay period from his dis-
charge on December 8, 1993, through November 30,
1995, a reasonable period of time after he had received
the Respondent’s unconditional offer to reinstate him on
November 21, 1995. The Respondent excepts, inter alia,
to the gross backpay formula used by the judge for cal-
endar quarters 94–4 (last 8 weeks), 95–1, 95–2, 95–3,
and 95–4. The Respondent argues that Cantidate is due
less gross backpay than what was found by the judge.
We agree that the judge miscalculated Cantidate’s gross
backpay for that portion of the backpay period. For the
reasons stated below, we shall modify the judge’s rec-
ommended Order.
Before his discharge in 1993, Cantidate worked as a
tier 1 coach busdriver for the Respondent. In that job, he
made Atlantic City runs at a flat rate of $150, airport runs
at an hourly rate of $8, combination Atlantic City/airport
runs at a flat rate of $135, and a few charter runs which
paid between $80 and $130 per trip. There is no dispute
that Cantidate’s average weekly earnings, exclusive of
any tip income, in 1993 amounted to $901.62.

1 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance 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.
2 The General Counsel excepts to that portion of the judge’s recom-
mended Order that directs the General Counsel to furnish a copy of the
instant Supplemental Decision to the Internal Revenue Service. We
find merit in this exception. As set forth in Original Oyster House, 281
NLRB 1153 fn. 1 (1986), enfd. 822 F.2d 412 (3d Cir. 1987), the Board,
not the General Counsel, has the notification responsibility in these
circumstances. Accordingly, we shall delete the reference to the Gen-
eral Counsel in the judge’s recommended Order, and we shall furnish a
copy of the Supplemental Decision to the Internal Revenue Service.
To compute Cantidate’s weekly gross backpay for cal-
endar quarters 93–4, 94–1, 94–2, and 94–3 and the first 5
weeks of quarter 94–4, the judge applied the backpay
formula submitted by the General Counsel. Under this
formula, the judge used $901.62, the 1993 average
weekly earnings, as a baseline and added to that figure
the $180 per week in tip income received by Cantidate.
She reached a total weekly amount of $1,081.62. She
then multiplied $1,081.62 by the appropriate number of
weeks in each quarter to find that Cantidate was entitled
to gross backpay for quarters 93–4, 94–1, 94–2, and 94–3
in the amounts listed in our Appendix A, which is at-
tached to this Supplemental Decision, and $5,408.10
representing the first 5 weeks of quarter 94–4. We adopt
these findings.
For the remaining portion of the backpay period, the
judge rejected the General Counsel’s backpay formula.
She agreed with the Respondent that the General Coun-
sel’s formula failed to reflect the changes in the wage
rates for tier 1 drivers made by the Respondent on No-
vember 1, 1994, and later on May 1, 1995. The credited
evidence shows that on November 1, 1994, the Respon-
dent lowered its wage rates for tier 1 drivers from $150
to $95 for the Atlantic City runs and from $135 to $94
for the combination Atlantic City/airport runs. The cred-
ited evidence further shows that on May 1, 1995, the
Respondent increased the Atlantic City run rate from $95
to $99 and the combination Atlantic City/airport run rate
from $94 to $100. The judge also found that the Re-
spondent provided an extra $30 meal allowance to tier 1
drivers for both the Atlantic City and the combination
Atlantic City/airport runs effective November 1, 1994.
To summarize, from November 1, 1994, until May 1,
1995, tier 1 drivers received a total (including their meal
allowances) of $125 for the Atlantic City runs and $124
for the combination Atlantic City/airport runs, respec-
tively. Starting May 1, 1995, tier 1 drivers received a
total (including their meal allowances) of $129 for the
Atlantic City runs and $130 for the combination Atlantic
City/airport runs, respectively.
The judge attempted to devise a backpay formula to
account for these wage changes. First, she computed
Cantidate’s weekly gross backpay starting November 1,
1994, on the basis of a 50/50 split between the Atlantic
City runs and the combination Atlantic City/airport runs.3
She then averaged the $125 Atlantic City total rate with
3 The Respondent’s records show that Cantidate essentially evenly
divided his worktime between the Atlantic City runs and the combina-
tion Atlantic City/airport runs in 1993 and that he did very few airport
and charter runs during that year. For ease of computing gross backpay
for the period between November 1, 1994, and November 30, 1995, the
Respondent urged that Cantidate’s workweek be treated as if it were
comprised of only the Atlantic City runs and combination Atlantic
City/airport runs. The judge found, and we agree, that this approach is
acceptable.
330 NLRB No. 53
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
the $124 combination Atlantic City/airport run total rate
to obtain “an average rate of $124.50 per day.” Using a
7-day workweek, the judge multiplied the $124.50 aver-
age daily rate by 7 to obtain average weekly earnings
(without tips) of $871.50. Finally, she added Cantidate’s
$180 weekly tip income to $871.50 for a new weekly
total amount of $1,051.50. Thus, according to the
judge’s calculations, Cantidate would have earned about
$30 less per week in gross backpay after the November
1, 1994 changes than he did in 1993.
Using this same approach, the judge calculated a new
weekly gross backpay amount to reflect the May 1, 1995
wage changes. She again used the concept of a 50/50
split between the Atlantic City runs and the combination
Atlantic City/airport runs. She averaged the $129 Atlan-
tic City total rate with the $130 combination Atlantic
City/airport total rate to obtain “an average rate of
$129.50 per day.” Once again, using a 7-day workweek,
she multiplied the $129.50 average daily rate by 7 to
obtain average weekly earnings (without tips) of
$906.50. Finally, she added Cantidate’s $180 weekly tip
income to $906.50 for a new weekly total amount of
$1,086.50. Thus, according to the judge’s calculations,
Cantidate would have earned almost $5 more per week in
gross backpay after the May 1, 1995 wage changes than
he did in 1993.
We find that the judge erred in calculating the impact
of the November 1, 1994 and May 1, 1995 wage
changes. The judge’s reasoning is flawed because her
formula is based on the premise that Cantidate would
have worked 7 days a week during the entire 13-month
period when the wage changes were in effect. This is not
consistent with Cantidate’s testimony that he worked “6
or 7 days” per week before his discharge and the Re-
spondent’s documents that indicate less than a 7-day-a-
week work schedule for Cantidate in 1993. Thus, we
find that the judge’s backpay formula for quarters 94-4
(last 8 weeks), 95–1, 95–2, 95–3, and 95–4 does not rea-
sonably approximate what Cantidate would have earned
had he not been discriminatorily discharged. See La Fa-
vorita, Inc., 313 NLRB 902 (1994), enfd. mem. 48 F.3d
1232 (10th Cir. 1995). Therefore, we do not adopt the
amounts of gross backpay based on the judge’s formula
that are listed for these quarters in the appendix attached
to her supplemental decision.
To calculate Cantidate’s gross backpay for the period
after November 1, 1994, we begin with the figure for the
1993 average weekly earnings of $901.62 that has al-
ready been established as a baseline for the backpay pe-
riod preceding November 1, 1994. Accepting the Re-
spondent’s assumption of a 50/50 split between the num-
ber of Atlantic City runs and the combination Atlantic
City/airport runs, we find that 53 percent of the $901.62
(or $477.86) was derived from Atlantic City trips and 47
percent of the $901.62 (or $423.76) was derived from the
combination Atlantic City/airport trips. As of November
1, 1994, the rate for the Atlantic City run was reduced
from $150 to $125. This was a decrease of 16.67 percent
per individual trip. The rate for the combination Atlantic
City/airport run was reduced from $135 to $124. This
was a decrease of 8.15 percent per individual trip. Tak-
ing the baseline weekly pay allotted for the Atlantic City
trips ($477.86) and applying the decrease of 16.67 per-
cent per individual trip results in a new weekly pay for
Atlantic City trips of $398.20. Similarly, taking the
baseline weekly pay allotted for the combination Atlantic
City/airport trips ($423.76) and applying the decrease of
8.15 percent per individual trip results in a new weekly
pay for the combination Atlantic City/airport trips of
$389.22. Thus, the average weekly earnings (exclusive
of tip income) effective November 1, 1994, is $787.42
($398.20 plus $389.22). We then add to $787.42 the
$180 per week in tip income received by Cantidate to
reach a total weekly amount of $967.42. Multiplying
$967.42 by the appropriate number of weeks in each
quarter, we find that Cantidate is entitled to gross back-
pay for the period of November 1, 1994, to May 1, 1995,
in the amounts listed below.

Yr./Qtr. Weeks Average Weekly
Earnings

Gross
Backpay
94-4 8 $967.42 $7,739.36
95-1 13 967.42 12,576.46
95-2 5 967.42 4,837.10

With the May 1, 1995 changes, we continue to assume
that 53 percent of Cantidate’s weekly work would have
been related to Atlantic City trips and 47 percent of his
weekly work would have been related to the combination
Atlantic City/airport trips. The May 1995 rate for the
Atlantic City run was slightly increased to $129 per run
from the November 1994 rate of $125, but was still
lower than the 1993 rate of $150. The May 1995 indi-
vidual trip rate was 14 percent less than the 1993 rate.
The May 1995 rate for the combination Atlantic
City/airport run was increased to $130 per run from the
November 1994 rate of $124, but it was still lower than
the 1993 rate of $135. The May 1995 individual trip rate
was 3.70 percent less than the 1993 rate. Taking the
baseline weekly pay allotted for the Atlantic City trips
($477.86) and applying the decrease of 14 percent per
individual trip results in a new weekly pay for Atlantic
City trips of $410.96. Similarly, taking the baseline
weekly pay allotted for the combination Atlantic
City/airport trips ($423.76) and applying the decrease of
3.70 percent per individual trip results in a new weekly
pay for the combination Atlantic City/airport trips of
$408.08. Thus, average weekly earnings (exclusive of
tip income) effective May 1, 1995, total $831.84
($423.76 plus $408.08). We then add to $831.84 the
$180 per week in tip income received by Cantidate to
reach a total weekly amount of $1,011.84. Multiplying
HARRAN TRANSPORTATION CO. 371
$1,011.84 by the appropriate number of weeks in each
quarter, we find that Cantidate is entitled to gross back-
pay for the period of May 1 through November 30, 1995,
in the amounts listed below.

Yr./Qtr. Weeks Average Weekly
Earnings

Gross
Backpay
95-2 8 $1,011.84 $8,094.72
95-3 13 1,011.84 13,153.92
95-4 9 1,011.84 9,106.56

Thus, based on our above revised calculations for the last
five quarters of the backpay period, we conclude that
Cantidate is owed total gross backpay in the amount of
$52,691.54, as indicated in the attached appendix A.
ORDER
The National Labor Relations Board orders that the
Respondent, Harran Transportation Co., Inc., Brooklyn,
New York, its officers, agents, successors, and assigns
shall pay John Cantidate the sum of $52,691.54, plus
interest, less the tax withholdings required by Federal
and state law, computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
APPENDIX A
Yr./Qtr. Gross Backpay Interim Earnings Interim
Expenses
Net Interim Earnings Net Backpay
93-4 $ 3,893.83 - - - $ 3,893.83
94-1 14,061.06 - - - 14,061.06
94-2 12,330.46 $ 3,340.36 $ 133.92 $ 3,206.44 9,124.02
94-3 11,789.66 7,838.62 435.24 7,403.38 4,386.28
94-4 13,147.46 8,396.26 435.24 7,961.02 5,186.44
95-1 12,576.46 8,591.79 435.24 8,156.55 4,419.91
95-2 12,931.82 9,462.22 435.24 9,026.98 3,904.84
95-3 13,153.92 7,145.88 435.24 6,710.64 6,443.28
95-4 9,106.56 8,136.00 301.32 7,834.68 1,271.88
Total $102,991.23 $52,911.13 $2,611.44 $50,299.69 $52,691.54

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372

Kathy Drew King, Esq., for the General Counsel.
John Diviney, Esq. and Alan Pearl, Esq., for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This sup-
plemental proceeding was heard in Brooklyn, New York, on
April 21 and 22, 1999. A backpay specification and notice of
hearing was issued on January 21, 1999, predicated on a Deci-
sion and Order of the Board dated October 30, 1995 (319
NLRB 461), which directed Harran Transportation Co., Inc.
(Respondent) to take certain affirmative action, including offer-
ing full reinstatement and making whole John Cantidate for any
loss of earnings he may have suffered as a result of Respon-
dent’s unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act.
General Principles
The purpose of a backpay award is to make whole the em-
ployee who has been discriminated against as the result of an
unfair labor practice. The employee is entitled to receive what
he would have earned normally during the period of the dis-
crimination against him, less what he actually earned in other
employment during that period. An employee must use reason-
able diligence to find employment during the period of dis-
crimination, and is not entitled to backpay for periods during
which he voluntarily remained idle. NLRB v. Brown & Root,
Inc., 311 F.2d 447 (8th Cir. 1963).
The finding of an unfair labor practice is presumptive proof
that some backpay is owed and in a backpay proceeding, the
sole burden on the General Counsel is to show the gross
amounts of backpay due, that is, the amount the employee
would have received but for the employer’s illegal conduct.
Once that is established, the burden is upon the employer to
establish facts that would mitigate that liability. Atlantic Limou-
sine, Inc., 328 NLRB 257 (1999). The backpay claimant should
receive the benefit of any doubt rather than Respondent, the
wrongdoer responsible for the existence of any uncertainty and
against whom any uncertainty must be resolved. La Favorita,
Inc., 313 NLRB 902, 903 (1994).
FINDINGS OF FACT
Cantidate was employed by Respondent as a full-time, tier 1
coach busdriver from January 3, 1984, until the time of his
unlawful discharge on December 8, 1993. Although Cantidate
was required to work only four shifts per week, he regularly
invoked his seniority rights and worked seven shifts per week,
17 hours per shift. Each day, Cantidate drove from his resi-
dence to Respondent’s facility in West Babylon, New York. If
he was scheduled to do a line run to Atlantic City, he drove
across Long Island, picking up passengers on his way, and
drove them to Atlantic City. He waited there for 6 hours and
then drove the same individuals back to Long Island. For this
round trip Atlantic City run, Cantidate was paid a flat rate of
$150. At times, there were not enough passengers to have all of
Respondent’s buses drive to Atlantic City. In that case, the
buses met in Queens and passengers were merged. If Cantidate
merged his passenger complement and was not a driver selected
to continue on to Atlantic City, he drove airport runs for the rest
of the day until the Atlantic City bus returned to Queens. When
the Atlantic City bus returned, Cantidate drove the reverse
route along Long Island dropping off passengers. For this com-
bination Atlantic City/airport run Cantidate was paid a flat rate
of $135. Cantidate testified that on rare occasion he spent an
entire day driving only to the airports for which he was paid at
an hourly rate of $8 per hour and the shift lasted 8 to 10 hours.
On a few occasions he drove charter runs for which he was paid
a percentage of the customer price which ranged roughly be-
tween $80 and $130 per trip. Cantidate testified that 99 percent
of the time he drove Atlantic City runs.
Cantidate testified that on Atlantic City runs he transported
approximately 49 passengers and earned approximately $30 in
tips for each round trip. At times passengers tipped him indi-
vidually and at other times passengers took up a tip collection.
Cantidate did not keep records of his tip income and did not
report this income on his state or Federal tax returns. Nor did he
advise the Family Court of Nassau County of his tip income in
the course of a child support proceeding. His estimate that he
received an average of $180 per week in tips is based solely on
his uncorroborated recollection. Herman Lightfoot, a tier 1
driver employed by Respondent for 30 years, testified that
when he drove line runs in 1993, he received minimal tips,
averaging about $5 to $10 per day. On some days he did not
receive any tips. He never recalled passengers on the Atlantic
City line run taking up a tip collection on his behalf. Joseph
Fernandez is presently an accounting consultant to Respondent
and formerly Respondent’s vice president and chief financial
officer. Fernandez testified that from time to time he heard line
drivers complain that they didn’t receive tips.
Following his discharge, Cantidate testified that he searched
for work as a busdriver. He looked on a daily basis at employ-
ment ads in Newsday, The New York Daily News, and The
Chief, three widely circulated newspapers. He called and/or
filed applications with approximately 20 bus and coach compa-
nies. He checked in with the Amalgamated Transit Union ap-
proximately once a week. He applied for a job with the U.S.
Postal Service, United Parcel Service, and took a civil service
examination to become a police officer. Once a week he went
to the New York State Unemployment Office and searched the
bulletin boards and computer listings for work opportunities.
He looked for job opportunities as a busdriver but indicated a
willingness to take any available position.
On or about January 11, 1994, Cantidate applied for a bus-
driver position with the Metropolitan Transit Authority Long
Island Bus Company (MTA) located in Uniondale, New York.
He was interviewed and placed on a call list for part time work
as full-time work was not available. He underwent several
weeks of training in January and began working part-time on or
about May 25, 1994. On June 19, 1994, he was converted to
full-time status. From January to June 1994, Cantidate contin-
ued to search for full-time employment. Cantidate regularly
works five shifts per week at the MTA. He has requested to
work as many overtime hours as possible but overtime oppor-
tunities have been limited because of his lower seniority level.
Cantidate does not earn tips driving for the MTA.
Cantidate testified that since 1990 he has lived continuously
at 2 Satinwood Street in Central Islip, New York, and that he
drove 18 miles each way to get to Respondent’s facility in West
Babylon. During his employment for the MTA, Cantidate testi-
fied he has driven 36 miles each way to the MTA facility in
Uniondale. Notwithstanding this testimony, however, a review
of Cantidate’s tax returns reveals that in 1993, he reported a
home address in Hollis, Queens, in 1994, he reported a home
address in Uniondale, and in 1995 he reported the 2 Satinwood
HARRAN TRANSPORTATION CO. 373
Street address. Cantidate explained that the Hollis address was
the home of a friend and that he listed that address because he
was in the process of a divorce and his wife was taking his
mail. He further explained that the Uniondale address was the
home of his parents. He was unequivocal in his testimony that
although he listed these addresses for various reasons, he con-
tinuously resided at 2 Satinwood Street.
George Semke, Respondent’s president, testified, without
contradiction, that on November 1, 1994, Respondent reduced
its wage rates for tier 1 drivers as follows: for Atlantic City
runs, the shift rate was reduced from $150 to $95; for Atlantic
City/airport combination runs, the shift rate was reduced from
$135 to $94; and for airport work, the hourly rate was reduced
from $8 to $5.50. Effective that same date, Respondent insti-
tuted a meal allowance of $30 per day for tier 1 drivers doing
the Atlantic City run. He was not certain if the meal allowance
was given for combination runs but it was given for hourly
airport work depending upon the number of hours the driver
was away from the bus depot. On May 1, 1995, Respondent
increased its wage rates for tier 1 drivers as follows: for Atlan-
tic City runs, the shift rate was increased from $95. to $99; for
Atlantic City/airport combination runs, the shift rate was in-
creased from $94 to $100; and for airport work, the hourly rate
was increased from $5.50 to $5.85. Semke further testified that
from June 20 to July 15, 1994, Respondent’s operation was
shut down due to a work stoppage and no employees worked
during that period.
By letter dated November 21, 1995, Respondent made an
unconditional offer to Cantidate to return to work. The General
Counsel alleges that the backpay period terminated on Novem-
ber 30, 1995, a reasonable period of time after Cantidate re-
ceived the offer of reinstatement.
The General Counsel submits that the appropriate calculation
of gross backpay in this matter is Cantidate’s average weekly
earnings for the 48 weeks he worked in 1993. The parties stipu-
lated that Cantidate’s social security wages for 1993 was
$44,986.59. Richard Epifanio, supervisory compliance officer,
testified that he subtracted from that amount an accrued vaca-
tion benefit of $1,708.64 for an adjusted amount of $43,277.95.
He then divided that figure by the 48 weeks worked and deter-
mined an average weekly earning of $901.62.
Analysis
A. Gross Backpay
The General Counsel’s office has the burden of establishing
gross backpay by seeking to ascertain the probable earnings of
a discriminatee during the backpay period. These are earnings
which would have been paid had the employee not been unlaw-
fully discharged. The Board is only required to employ a for-
mula reasonably designed to produce approximate awards due.
NLRB v. Pilot Freight Carriers, Inc., 604 F.2d 375, 378–379
(5th Cir. 1979).
Respondent does not challenge that Cantidate’s average
weekly earnings in 1993 was $901.62.1 Respondent does chal-
lenge the inclusion in any gross backpay figure of tip income

1 Respondent did seek to introduce evidence that the discriminatee
received medical and pension benefits at the MTA which he did not
receive from Respondent. I adhere to my ruling excluding this evidence
as relating to collateral benefits which are not a proper offset to gross
backpay in the circumstances of this case. See United States Can Co.,
328 NLRB 334 (1999).
on the grounds that Cantidate never previously reported this
income and that his estimate of tip income is exaggerated given
the testimony of a currently employed driver that tip income for
line drivers was minimal. I credit Cantidate’s testimony as to
the amount of tips he earned. Cantidate was a credible witness
and his testimony appeals to common sense. He was driving
large motor coach buses to Atlantic City and he transported
approximately 49 passengers each day or 343 passengers each
week. If each of those passengers gave Cantidate a tip of be-
tween 50 cents and $1, he would easily have earned the esti-
mated $180 in tips each week. I find the figure of $180 to be a
reasonable approximation of Cantidate’s weekly tip income,
and his failure to previously report this income to government
authorities is not fatal to his claim. Atlantic Limousine, Inc.,
328 NLRB 257 (1999); Hacienda Hotel & Casino, 279 NLRB
601 (1986). It is, however, appropriate for the General Counsel
to notify the Internal Revenue Service of this unreported in-
come. Id. at 601 fn.4.
Respondent further contends that if Cantidate had not been
unlawfully discharged, he would have suffered a 5-percent loss
of income for the first 13 weeks of 1994. Respondent’s argu-
ment is that a traffic accident that Cantidate had on December
5, 1993, which Judge Edelman found in the underlying case to
be one of the pretextual reasons given for Cantidate’s unlawful
discharge, was nevertheless a “chargeable accident” which
would have led to forfeiture of his safety bonus. Respondent’s
argument is pure speculation. Respondent should not now be
heard to say that, on reflection, it would like to exercise its
option to take presumably lawful disciplinary action when it
failed to take such action in the first place. Moreover, Judge
Edelman addressed Respondent’s treatment of driver accidents
at length in his decision, and there was no discussion of a safety
bonus being forfeited with respect to any driver.
Respondent correctly challenges the General Counsel’s gross
backpay calculations for the second and third quarters of 1994
in light of the uncontradicted testimony of Respondent’s presi-
dent that from June 20 to July 15, 1994, there was a shutdown
of Respondent’s operation during which no employees worked.
It is therefore proper to deduct 1.6 weeks of gross wages for the
second quarter of 1994 and 2.1 weeks for the third quarter of
1994. The gross backpay for the second quarter of 1994 is
$12,330.46 ($14,061.06 – (1.6 x $1,081.62)). The gross back-
pay for the third quarter of 1994 is $11,789.66 ($14,061.06 –
(2.1 x $1,081.62)).
Respondent correctly challenges the General Counsel’s gross
backpay calculations for the fourth quarter of 1994 and for all
of 1995 in light of the uncontradicted testimony of Respon-
dent’s president that wage reductions and increases were ef-
fected during this period of time. Semke testified, and I find,
that on November 1, 1994, Respondent reduced its wage rates
for tier 1 drivers from $150 to $95 for Atlantic City runs and
from $135 to $94 for combination runs. I further find that effec-
tive the same date, Respondent instituted a meal allowance of
$30 per day for Atlantic City runs.2 Semke testified that he was
not certain if the meal allowance was given for combination
runs. Since any uncertainty in the evidence is to be resolved
against Respondent as the wrongdoer, Paper Moon Milano, 318
2 There was some testimony regarding the nontaxable nature of the
meal allowance. I make no finding in this regard other than to find that
the meal allowance is appropriately considered as part of the gross
backpay figure.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
NLRB 962, 963 (1995), I find that the meal allowance should
be credited to the gross backpay figure for combination runs as
well as Atlantic City runs. The effective wage rate for combina-
tion runs as of November 1, 1994, was therefore $124 and for
Atlantic City runs was $125.
An examination of Respondent’s records for 1993 reveals
that Cantidate drove Atlantic City runs 140 days out of a total
of 288 days, or 49 percent of the time. The balance of his trips
were combination runs. Respondent suggests in its brief for
ease of computation that Cantidate’s backpay should be com-
puted on the basis of a 50/50 split, half his time calculated on
the Atlantic City run rate ($125 per day), and half his time cal-
culated at the combination run rate ($124 per day). I adopt Re-
spondent’s approach as fair and reasonable. Effective Novem-
ber 1, 1994, therefore, I conclude that the gross backpay figure
should be computed at an average rate of $124.50 per day for a
7-day workweek. The gross backpay for the fourth quarter of
1994, including tips, is therefore $5,408.10 (5 weeks x
$1,081.62) plus $841.20 (8 weeks x $1,051.50) totaling
$13,820.10.
The gross backpay for the first quarter of 1995 is $13,669.50
(13 weeks x $1,051.50).
In the second quarter of 1995, effective May 1, 1995, Re-
spondent increased the Atlantic City run rate from $95 to $99
while continuing the $30 meal allowance for an effective rate
of $129 per day. The combination run rate was increased from
$94 to $100, for an effective rate of $130 per day. For this pe-
riod, I conclude that the gross backpay figure should be com-
puted at an average rate of $129.50 per day for a 7-day work-
week. The gross backpay for the second quarter of 1995, in-
cluding tips, is therefore $5,257.50 (5 weeks x $1,051.50) plus
$8692 (8 weeks x $1086.50) totaling $13,949.50.
The gross backpay for the third quarter of 1995 is
$14,124.50 (13 weeks x $1,086.50).
I find that the backpay period terminated on November 30,
1995, as alleged by the General Counsel. The gross backpay
period for the fourth quarter of 1995 is therefore $9778.50 (9
weeks x $1086.50).
The total gross backpay owed to Cantidate for Respondent is
$107,417.11.
B. Interim Earnings
Respondent’s sole challenge to the General Counsel’s in-
terim earnings calculation is that Cantidate failed to adequately
search for interim employment in the fourth quarter of 1993
and the first and second quarters of 1994. I reject Respondent’s
challenge as contrary to the credible evidence.
Cantidate credibly testified as to his daily efforts to find
work during the entire backpay period. After he was placed on
an on-call list by the MTA in January 1994, he nevertheless
continued to look for full time work and the record shows that
from January to June 1994, prior to his beginning to work full
time for the MTA, Cantidate made no less than 30 attempts to
find work.3 Respondent’s introduction of classified advertise-
ments from Newsday is not sufficient to prove that there were
jobs available or that Cantidate would have been successful in
obtaining one. E & L Plastics Corp., 314 NLRB 1056, 1058
(1994).

3 Respondent subpoenaed an MTA official to appear at the hearing
and to produce records relating to this proceeding. No evidence was
offered that Cantidate ever refused to work available hours at the MTA
between January and June 1994
In determining whether an individual claimant has made a
reasonable search for employment, the test is whether the re-
cord as a whole establishes the employee diligently sought
other employment during the entire backpay period. Respon-
dent must affirmatively demonstrate that the employee ne-
glected to make reasonable efforts to find interim work. The
employer fails to meet the burden by merely presenting evi-
dence of lack of employee success in obtaining interim em-
ployment. The discriminatee is held only to reasonable exer-
tions in this regard, not the highest standard of diligence. Rain-
bow Coaches, 280 NLRB 166, 180 (1986). Applying this stan-
dard to the instant case, I find that Cantidate made a reasonable
search for work during the entire backpay period and there was
no failure on his part to mitigate his damages. I therefore adopt
the General Counsel’s calculation of interim earnings for the
entire backpay period.
C. Mileage Expenses
I credit Cantidate’s testimony that since 1990 he has resided
continuously in Central Islip, New York. I therefore find that
during his employment with Respondent, Cantidate drove 36
miles each day for a 7-day workweek, or 252 miles per week.
During his employment with the MTA, Cantidate drove 72
miles each day for a 5-day workweek, or 360 miles per week.
Cantidate should therefore be reimbursed for the 108 miles
driven each week in excess of the mileage he drove when em-
ployed by Respondent.4
It is not clear from the record how many trips to work Canti-
date made between May 25, 1994, when he began working part
time for the MTA and June 19, 1994, when he began working
full time, 5 days per week. The General Counsel calculated 9
weeks of mileage expenses for the second quarter of 1994
which is far in excess of the appropriate amount. Respondent,
however, did not adduce any evidence to clarify this point. I
therefore find it reasonable to accord the discriminatee 4 weeks
of mileage expenses in the second quarter of 1994, 2 weeks for
the period May 25 to June 19, and 2 weeks for the last 2 weeks
in June.
Since the backpay period ended on November 30, 1994, the
discriminatee is entitled to 9 weeks of mileage expenses in the
fourth quarter of 1995.
Respondent’s final argument against the awarding of mileage
expenses to the discriminatee is that because Cantidate had
meal and uniform expenses while working for Respondent
which he does not have working for the MTA, he had overall
less expenses during the backpay period. Respondent argues
that any award of mileage expenses would therefore constitute
a bonus. Respondent’s argument is plainly without merit. The
Board has consistently held that transportation expenses to and
from interim employment which exceed the normal costs of
transportation to and from the respondent’s place of business
are properly deductible from interim earnings. Richard W.
Kaase Co., 162 NLRB 1320, 1326 (1967). There is no basis to
offset the amount of that deduction with other savings poten-
tially realized by the discriminatee in the course of his interim
employment. I find that the discriminatee is entitled to the full
4 Respondent is being charged for the seven shifts that Cantidate
worked each week as part of the gross backpay calculation. It is there-
fore fair and reasonable to use the same seven shifts to calculate the
mileage driven by Cantidate as opposed to the five shifts used by the
General Counsel.
HARRAN TRANSPORTATION CO. 375
deduction from his interim earnings for excess mileage ex-
penses.
Conclusion
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, 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.
ORDER
The Respondent, Harran Transportation Co., Inc., Brooklyn,
New York, its officers, agents, successors, and assigns, shall
Pay to John Cantidate the sum of $57,117.42 as net back-
pay, with interest computed thereon in the manner prescribed in
the Board’s Decision and Order and making the appropriate
deductions from said amounts of any tax withholding required
by state and Federal laws.
The General Counsel shall
Furnish a copy of this Supplemental Decision and Order to
the Internal Revenue Service

HARRAN TRANSPORTATION CO. 1

330 NLRB No. 53