NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
First Transit, Inc., Successor with Liability to
Ryder/ATE, Inc. and Wholesale
Delivery Drivers, Salespersons, Industrial and Allied Workers, Local 848,
International Brotherhood of Teamsters.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 Order finding that, in relevant part, the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its attendance policy.2 The Board ordered the Respondent, among other things, to reinstate and make whole any employee who had been discharged, suspended, or disciplined as a result of the unlawfully implemented policy.3 On October 17, 2001, the Board’s order was enforced by the United States Court of Appeals for the District of Columbia Circuit.4
Subsequently, the Regional Director identified 37 employees whose employment was allegedly lost pursuant to the unlawfully implemented policy. On May 27, 2004, the Regional Director issued a compliance specification setting forth the amount of backpay due the claimants. 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 November 18, 2004, before Administrative Law Judge James M. Kennedy. On July 29, 2005, he issued the attached supplemental decision, ordering backpay for 28 claimants. The Respondent and the General Counsel filed exceptions, supporting briefs, and answering briefs. 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 exceptions5 and briefs6 and has decided to affirm the judge’s rulings,7 findings,8 and conclusions as modified herein.
A. Frances Carmona (Lemos)
The judge awarded backpay to Carmona in the amount of $49,747.27. Carmona was discharged under the Respondent’s unlawfully implemented attendance policy on April 15, 1998. During the period covered by the compliance specification, Carmona obtained interim employment 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 decision 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 willful 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 employment at Budget, the General Counsel presented no evidence indicating that the reduction made it economically 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 employment deemed reasonable where it was “economically unfeasible” for him to continue). Also, although Carmona testified that Budget planned to lower her pay from $8 per hour, the General Counsel made no attempt to 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 employment 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 earnings and a concomitant increase in net backpay.
Accordingly, we find that the General Counsel failed to prove that Carmona’s quit was reasonable. Knickerbocker Plastic Co., 132 NLRB 1209, 1214–1215 (1953).12
Pursuant to the offset formula set out in Knickerbocker Plastic, supra at 1215, we have computed as the quarterly 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 ($1,147.18) 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 employment 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 offset at employment secured subsequent to quitting, also on a quarterly basis, the amount of the offset was deducted from gross backpay. Applying this formula to the remainder of Carmona’s backpay period, we have used the offset amount of $1,147.18 for all four quarters of 2001 because that amount is higher than her actual interim 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 recommended Order by requiring the Respondent to pay Carmona net backpay of $48,299.61.
B. Juanita Madden
The judge awarded backpay to Madden in the amount of $4,882.42, finding that she had been terminated pursuant to the Respondent’s unlawfully implemented attendance policy. During the hearing, several personnel records from the Respondent’s files were introduced into evidence to show that Madden was terminated for violating the policy. An “Employee Attendance Form” dated September 18, 1997, and signed by Madden states that Madden had accumulated eight points under the attendance 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, Madden testified that she resigned from employment on September 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 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 personnel 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 Respondent 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 discharged pursuant to the Respondent’s unlawfully implemented policy. In so finding, we emphasize that Madden’s admission of resignation was against her own pecuniary 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 interest 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 reverse 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 employment pursuant to the Respondent’s unlawfully
implemented attendance policy. The Respondent’s 8(a)(5) liability 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 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 resigned 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 set out in the backpay specification, $54,315.00, 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 Respondent on January 27, 1997, and was discharged pursuant 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 application 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 conviction at the time of her hiring. The judge credited Garcia’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 backpay 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 ordered and backpay is terminated on the date that the employer first acquired knowledge of the misconduct. Contrary 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. Accordingly, 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
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 longstanding precedent
holding that backpay shall be tolled on the date when the Respondent first
learns of the claimant’s misconduct.
We also reject our colleague’s suggestion that the Respondent should be relieved of the normal remedy for Robinson because, he says, the Respondent “did not engage 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 System, 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 warrant 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
ORDER
The National Labor Relations Board adopts the recommended supplemental Order of the administrative law judge as modified herein 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 thereon 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 |
|
Juanita Madden |
0 |
|
Natasha McQueen |
36,552.64 |
|
Leo Mitchell |
951.01 |
|
Tom Montoya |
0 |
|
Cindy O’Neal |
54,315.00 |
|
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 |
$925,687.99 |
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
Lisa A. McNeill, for the General Counsel.
Douglas N. Silverstein (Kesluk &
Silverstein), of
James
M. Kennedy, Administrative Law
Judge. This compliance hearing was tried
in
The issues, as
presented, are relatively straightforward.
For the most part, the gross backpay has been calculated as being
reasonably accurate and a stipulation governs the backpay formulas which have
been followed. The principal concerns
raised by the answer and the applicable stipulation are a variety of
offsets. Most frequently, Respondent
argues that the claimant2
voluntarily removed himself/herself from the job market, thereby failing to
meet the required duty of mitigating his or her damages. The alleged removals took various forms:
quitting acceptable interim employment without good cause; returning to school
full time; failing to make an adequate search for interim employment; and, in
one case, deliberately choosing underemployment. Respondent also argues that some of the employees
were ineligible for backpay in the first place because they were either
probationers or they would have been discharged under the previous attendance
policy.
A second
stipulation modifies the backpay specification for former drivers Lola Joyner,
Lonnell Horn, Juanita Madden, Natasha McQueen (Warren), Cindy O’Neal, and Deborah
Sleets.
In addition, there
is a stipulation regarding missing and deceased claimants. It covers seven former employees and requires
Respondent to establish a set-aside of approximately $643,000 while the parties
jointly determine, on an administrative basis, whether the gross backpay of the
missing and deceased claimants may be subject to an offset. Those individuals are José Avalos (deceased),
Denny Benavides, Shawn Howell,3 Ike Johnson,
Marcus Nelons, Valerie Pedraza, and Tyrice Turner. These individuals’ claims are deliberately
omitted from this decision.
Generally speaking,
the rules of law to be applied are as follows:
A finding by the Board that an unfair labor
practice was committed is presumptive proof that some backpay is owed, NLRB
v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied
384 U.S. 972 (1966), and it is the General Counsel’s burden to establish the
reasonableness of the method used to calculate gross backpay. Those are not issues here. In the next stage, the burden shifts to the
respondent to demonstrate that there are offsets to the gross figures, i.e.,
mitigation. The case usually cited for
that proposition is NLRB v. Brown & Root, Inc., 311 F.2d 447, 454
(8th Cir. 1963). Therefore, this
Respondent has the burden of establishing such matters as availability of jobs,
willful loss of earnings, and interim earnings to be deducted from the backpay
award. NLRB v. Mooney Aircraft, Inc.
366 F.2d 809, 812–813 (5th Cir. 1966); Neeley’s Car Clinic, 255 NLRB
1420 (1981). When there are uncertainties
or ambiguities, doubt should be resolved in favor of the wronged party rather
than the wrongdoer. United Aircraft
Corp., 204 NLRB 1068 (1973), and cases cited therein. In evaluating the reasonableness of a
claimant’s efforts to mitigate, the law does not require the highest standard
of diligence, but only that he or she make an “honest good-faith effort to find
suitable employment.” NLRB v. Arduini Mfg. Co., 394 F.2d 420, 422–423
(1st Cir. 1968). Furthermore, the
backpay claimant’s efforts during the entire backpay period, rather than in any
particular quarter, must be considered to 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 employment in the field in
which he or she had been performing at the time of the discharge—that is,
substantially equivalent employment.
Accordingly, a claimant is not required to accept a lower-paying job or
more onerous work absent compelling factors, such as an undue amount of time
spent searching unsuccessfully for a comparable position. Arlington Hotel Co., 287 NLRB 851, 854
(1987). Furthermore, a claimant does not
fail to mitigate if he or she declines to move from one location to another to
try to find a job. Cf. Hacienda
Hotel & Casino, 279 NLRB 601, 605-606 (1986); Iron Workers Local 15,
298 NLRB 445, 469 (1990).
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
Clide Aaron was
hired in late October 1999 and was discharged under the absentee policy on July
25, 2000. The specification asserts her
backpay period runs from the date of her discharge to January 23, 2002. Adjustments have already been made in the
specification covering periods where she was unable to work due to family
circumstances (caring for her daughter injured in auto accident and then caring
for her husband after a heart attack).
In addition, the General Counsel’s brief concedes that Aaron’s testimony
that she did not search for work during the 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 discharge during the third quarter of 2000. The gross backpay for that period is
$3,218.87. 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 recovered. The accident was followed by a second family
emergency on January 9, 2001, when Aaron’s husband suffered a heart
attack. In August 2001, he suffered a
second heart attack. As a result of the
daughter’s auto accident and her husband’s cardiac condition, Aaron never took
the Swift Transportation job. Indeed,
she has not found any work since that offer.
While the General Counsel has adjusted the gross backpay for those periods,
acknowledging that Aaron was not seeking employment during those times,
Respondent counters that, terrible as the personal tragedies befalling Aaron
and her family may have been, the reality for backpay purposes is that she
never actually took the only interim employment offered to her during the
slightly more than 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 applications
at several bus and charter lines, including Victor Valley Transit, Wal-Mart,
and Stater Brothers Supermarkets.
For this
proposition, Respondent has essentially combined two arguments, one of which
has been partially accepted by the General Counsel. The combination is the familiar duty to mitigate
as set forth above and the second is the so-called “hazards of living” rule set
forth in American 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 employment. Her
first run with Swift would have required her to be away from her home in
Respondent has not
challenged Aaron’s efforts to obtain interim employment during the remainder of
the backpay period. In any event, taken
as a whole, her efforts were reasonable.
For those 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.
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 earnings 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 Ryder/ATE. Although her
testimony is somewhat disjointed, it also appears that she applied for a
schoolbus job with the Chaffey [Joint Union High]
Respondent argues
that it is entitled to an offset during those periods of unemployment that are
not clearly described by Benemie—particularly the year between the end of the
Del Taco job and the beginning of the Chaffey job. It specifically asserts that it was unable to
obtain any useful information because of Benemie’s “dizzying” testimony. And, to be sure, Benemie was unclear on her
job-seeking efforts. This is not
particularly surprising, given the passage of time. She recalled job applications, but was unable
to place them in any particular time frame.
A number of more important things were no doubt her daily focus:
marriage, death of a premature infant, subsequent pregnancy, and the like.
However, Respondent
has the burden of proof to demonstrate that Benemie had willfully avoided job
opportunities. Here, I think it has
failed to meet that burden and doubts on the issue are to be resolved in favor
of the claimant. United Aircraft
Corp., 204 NLRB 1068. Accordingly,
Benemie is entitled to the full amount set forth in the modified appendix C-4,
the sum of $33,300.77.
Ryder/ATE hired
Frances Carmona in September 1997; she was discharged under the unlawfully
imposed attendance system on April 15, 1998.
Her backpay period runs from April 16, 1998, until January 23,
2002. Although unrelated to any remedial
issue under scrutiny here, Respondent actually reinstated her on April 3,
2004.
Respondent’s
argument concerning Carmona entails two incidents, each of which it asserts
requires termination or reduction of her backpay. However, Respondent’s brief does not take
issue with the net backpay until the 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 contract
with the Foothill Transit Authority, but over routes originating from a yard in
Insofar as both of
these incidents are concerned, Respondent’s position is without merit. Carmona’s testimony is replete with efforts
to find and remain employed. Even the
Laidlaw employment demonstrates that.
She was hired as a coach driver for Laidlaw, taking a pay cut of more
than $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 Ryder
Systems, 302 NLRB 608, 610 (1991), that an involuntary separation from an
interim employer not constituting gross misconduct is not a willful loss of
employment. Carmona lost her job to take
her infant to the hospital—hardly gross misconduct—and immediately sought to resume
her job. See also P*I*E Nationwide,
297 NLRB 454 (1989), enfd. in 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 significantly
less than she needed, so she quit to seek another job. I find that her decision here was perfectly
reasonable under the circumstances.
Certainly, Respondent has not shown that her decision amounted to a
willful loss of employment.5
I conclude that
Respondent has not met its burden of demonstrating that Carmona willfully
refused employment during the period in question. Accordingly, her backpay has been computed
correctly at $49,747.27.
In its brief, Respondent
has advised that it does not dispute the backpay calculated on behalf of
Raymond Coletti as set forth in appendix C-6.
Accordingly, no discussion of his circumstances is required. The net backpay due Coletti is $25,611.89.
Robin Corral’s
backpay period begins on July 5, 1997, and ends on January 23, 2002. Respondent’s principal contention regarding
this claim arises from Corral’s testimony that she was fired from an interim
employer, the San Gabriel Valley Tribune, in 1999 and later quit a subsequent
job at Lawrence Equipment. Respondent
has constructed a backpay alternative based on the pay rate earned at Lawrence
Equipment. It should be observed here
that the appendix C-7 for Corral has been modified and the modification is in
evidence as General Counsel’s Exhibit 9.
Respondent does not quarrel with the adjustments made as set forth in
that exhibit, but believes it should be further modified based on Corral’s
discharge for misconduct and/or the subsequent quit.
While employed by
Ryder/ATE, and before her unlawful discharge, Corral had been attending night
school to acquire office skills, specifically bookkeeping. As a result, she did not limit her interim
job search to bus driving and when she had completed the class, she obtained
work with a temporary office staffing company which assigned her to a temp job
with the San Gabriel Valley Tribune.
After a period, that employer hired her directly as a customer service
representative and she remained employed there until her discharge.
Corral explains
that she was fired after being called in for a 5-hour Saturday shift, a
situation which created a child care problem for her. She had seen other employees bring children
to work and believed it would be okay to bring her baby in that day. An acting supervisor objected and a verbal
disagreement ensued. As a result, that
employer discharged her, citing “misconduct” as the reason. Although a discharge for insubordinate
conduct, which Corral appears to acknowledge here, cannot be approved as a
general policy, nevertheless, it did not amount to a forfeiture of
backpay. It simply was not gross
misconduct, nor was it a deliberate or willful attempt to get fired.
As discussed above,
a backpay claimant who is fired by an interim employer is to be judged under
the standards established by the Board in Ryder Systems and P*I*E
Nationwide, both supra. In Ryder,
the Board said at 610:
The Board has consistently held that discharge from interim employment, without more, is not enough to constitute willful loss of employment. P*I*E Nationwide, 297 NLRB 454 (1989), enfd. in pertinent part 923 F.2d 506 (7th Cir. 1991), and cases cited therein. A respondent must show deliberate or gross misconduct on the part of the discharged employee in order to establish a willful loss of employment. Here we find that the Respondents failed to show that Larry Elmore’s conduct fell within that standard. Elmore may have missed several scheduled deliveries, but he committed no offense involving moral turpitude and his conduct was not otherwise so outrageous as to suggest deliberate courting of discharge.8 Without such proof, Elmore’s discharge from ATS will not serve as a basis for tolling his backpay.
__________________
8 See Lundy Packing Co.,
286 NLRB 141, 146 (1987), enfd. 856 F.2d 627 (4th Cir. 1988), and Mid-America
Machinery Co., 258 NLRB 316, 319 (1981). The same reasoning applies with regard
to David Elmore’s discharge from
What the Board
observed in Ryder Systems, supra, can also be seen here. Corral’s conduct does not suggest that she
deliberately courted discharge, nor did she commit an act of moral turpitude or
something equally extreme. Accordingly,
I do not find that her discharge from the San Gabriel Valley Tribune to be evidence
that she forfeited her right to backpay.
Analysis of her
departure from Lawrence Equipment produces a similar result. That interim employer was a kitchen equipment
manufacturer (tortilla machines) which hired Corral as a receptionist at $8 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 receptionist job
is of no legal consequence. Its
potential was greater, it provided overtime opportunities and would become
substantially equivalent to the Ryder/ATE job.
In August 2001,
Corral, for family reasons, decided she needed more money to take care of her
children and she was becoming tired of bus driving. She seamlessly found another job at a company
known as Metro One. That employer’s business
is not clear from the record, nor is the nature of the job she took. She worked from August through November
2001. She testified that she was
discharged from that job as a consequence of a medical issue. Apparently, off the job she suffered a broken
nose, resulting in bruising and some dizziness.
The company was unsympathetic to her plight and, despite a doctor’s
note, dismissed her for excessive absenteeism.
Respondent makes no
argument regarding Corral’s departure from Metro One, only contending that the
Donald Duplessis’s
backpay period is from August 7, 1998, through May 27, 2003. He is one of the few whose specification
shows virtually no interim earnings over this 5-year period and his net backpay
is nearly $98,000. Respondent’s
principal argument is that his testimony about job searching is not credible. Even so, it acknowledges that Duplessis’s
first 3 years of searching are not really challengeable. In its brief, it asks that the backpay cease
beginning with the third quarter of 2001, thereby excluding the last 2 years
from the calculus.
It is accurate to
say that Duplessis’s responses to Respondent’s inquiries create some questions
which are not fully answered. Part of it
is because while Duplessis could testify about the places he sought work, he
had difficulty in saying when those applications were filed. Many applications were completed from the
State’s Employment Development Department (EDD) which would fax applications
and resumes to employers who had listed jobs.
The EDD apparently did not routinely provide copies to Duplessis of the
material it sent out on his behalf. Even
if it was available, Duplessis had no real incentive to maintain whatever he
did receive. Duplessis, like most of
these claimants, did not know until the compliance stage began, sometime after
the court judgment of October 17, 2001, that he was a victim of an unfair labor
practice. Thus, he and the others
remained unidentified for years while the case was processed. As a result no one, not the
However, none of
these facts advance Respondent’s argument that the last 2 years of backpay
should be denied. Duplessis, in 1998
during the earlier part of his backpay period, had begun to attend a nearby
community 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 computer skills,
English literature, and math. He also
sought exposure to the standard general education requirements of the
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 college learning. He took civil service tests for city, county,
and State agencies, applied as a tree trimmer, and sought work as an airport
driver and delivery driver. He had only
middling success with the civil service tests, which he took up through
2002. He had also applied for work at
the
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 efforts 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 therefore immemorable, events from that distance, and no one had
asked him to keep records. Accordingly,
I find that Respondent has not proven that Duplessis failed to mitigate the
backpay as alleged in the specification.
He is entitled to the full amount set forth in appendix C-8, $97,877.32.
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.
Before discussing
Respondent’s first argument, it should be observed that although the backpay
period covers 14 full quarters and parts of 2 others, it reflects no gross
backpay calculation 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 Respondent’s contention. It
argues that two of the applications relied upon to prove English’s job search
during those quarters were actually completed before she became a victim of the
unlawfully imposed attendance program.
As English testified, when she became aware that she was in danger of
losing her job, she applied to two other transit agencies, Omni Transit in
In any event, the
Orange County Transit rejection letter, received some 3 months after the
Ryder/ATE discharge, spurred her to further action. She registered with the unemployment office
(EDD) for the purpose of trying to find work.
Unconventionally, she did not simultaneously seek unemployment
benefits. Instead, she used their
resources to look for a job and sought work near her
English: A lot of people was going to Orange County Transit because, you know, I don’t know. They was paying a little more, you know . . . But I was waiting around for that. And then, when I got the card in the mail saying that, you know, they couldn’t hire me at this time, then that’s when I went to the unemployment office. So three months was gone and, you know, waiting for that. I was looking forward to that because some people had got hired. You know, you’re like sitting around waiting. That took some of my time . . . And then, when I found out I didn’t get that job, then that’s when I went to the unemployment office and I would look in the computer and I’m kind of computer illiterate, so I don’t really catch on and they had this computer thing going on.
So I went down
there and I was trying to find—you know, you try to find a job similar to what
you were used to and a lot of the jobs that I wanted were in L. A. and I didn’t
really know too much about L. A. I was
always a close to home type of person.
So it either had to be
English also
applied for work with the
Her efforts with
EDD, however, eventually paid off. She
found a part-time truck driving job with Sky Chefs at the
While it could be
said that English’s job search in the preceding 2-1/2 quarters could have been
more constant, it seems to me that her efforts exceeded the minimum to qualify
as reasonable. She was distracted to
some degree by family issues—being the single mother of three teenage girls,
having the house in which they lived sold out from under her by a resentful/abusive
ex-husband, and keeping that ex-husband at bay.
Despite those concerns she sought and, when she found it, embraced work.9 I
have no doubts that she was an active job seeker during that 2-1/2-quarter
period.
The second issue is
one of proof of proper allocation. English
answered Respondent’s subpoena by producing two Internal Revenue Service
printouts containing information from W-2 forms for tax years 1999 and
2001. Respondent has allocated these
newly-learned interim earnings in a fashion which reduces or eliminates the net
backpay in those quarters of 1999 and 2001 where gross backpay has been
shown. I am not convinced that such an
allocation is acceptable.
Compliance officials often spread annual earnings equally across all four quarters of a year. They do so for gross earnings (sometimes modified by known wage changes) and for year-long employment. And, they are sometimes forced to make a four-quarter allocation when they are unable to assign the earnings to their proper quarters due to a lack of information or when they are unable to make a reasonable determination of when the employee was actually working. The better practice is, of