First Transit, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 2008

352 N.L.R.B. 896 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 111
896
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. Cases 21–CA–32146 and 21–CA–32285
July 28, 2008
SECOND SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On February 22, 2008, Administrative Law Judge
James M. Kennedy issued the attached second supple-
mental decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board1 has considered
the second supplemental decision and the record in light
of the exceptions2 and briefs3 and has decided to affirm
the judge’s rulings, findings,4 and conclusions5 and to
adopt the recommended Order.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 No party has excepted to the judge’s backpay determinations con-
cerning employees José Avalos, Marcus Nelons, and Tyrice Turner. In
addition, no exceptions were filed to the judge’s findings that: (1) the
backpay of Ike Johnson (a/k/a Ikey Williams) should terminate at the
time he suffered a stroke that disqualified him from driving profession-
ally; (2) Shawn Howell did not quit her driving job with Diversified
Paratransit, but rather that she was discharged; and (3) Howell’s earn-
ings from hairdressing should not be offset against her backpay.
3 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
4 The Respondent claims that the backpay of claimant Denny
Benavides should be tolled as of his arrest in late September, 1999
because under any attendance policy embraced at that time by the Re-
spondent, “Benavides would not have been allowed a week off, espe-
cially on short notice.” In so arguing, the Respondent claims that
Benavides was jailed for a week, not the 2–3 days found by the judge.
We find that, even if Benavides was jailed for a week, the Respondent
did not meet its burden of proving that Benavides would necessarily
have been discharged for that absence under the Respondent’s atten-
dance policy. The Respondent presented no evidence showing how it
handled absences for arrests in the past and did not show that discharge
would have been inevitable under these circumstances. Accordingly,
we agree with the judge that Benavides’ backpay should not be tolled
as of his arrest in late September.
5 In its exceptions, the Respondent argues, inter alia, that in evaluat-
ing claimant Shawn Howell’s entitlement to backpay, “the ALJ did not
take into account that Howell quit her Laidlaw job to go back to
school.” R. Br. 11. We find that Howell’s decision to quit her interim
Laidlaw job did not nullify her right to backpay for the entire backpay
period. In 1999, Howell found employment at Laidlaw, where she
ORDER
The National Labor Relations Board adopts the rec-
ommended Second Supplemental Order of the adminis-
trative law judge and orders that First Transit, Inc., suc-
cessor with liability to Ryder/ATE, Inc., Pomona, Cali-
fornia, its officers, agents, successors, and assigns, shall
satisfy the obligation to make whole the following claim-
ants 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.
Name of Backpay Claimant Net Backpay
José Avalos -0-
Denny Benavides $4,796.80
Shawn Howell 34,597.40
Ike Johnson a/k/a Ikey
Williams
50,856.94
Marcus Nelons -0-
Valerie Pedraza 25,703.18
Tyrice Turner 2,149.94
Total Net Backpay $118,104.26
Lisa E. McNeill, Esq., for the General Counsel.
Douglas N. Silverstein, Esq. (Kesluk & Silverstein), for the
Respondent.
SECOND SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This sup-
plemental compliance hearing was tried in Los Angeles and
Lancaster, California, on 3 hearing days, August 21 and Sep-
tember 21–22, 2007. In a literal sense it is the completion of
the task begun on July 29, 2005, when I issued a decision re-
solving the initial compliance specification arising from the
Board’s Order in 331 NLRB 889, dated July 31, 2000. That
Order was enforced by the Court of Appeals for the District of
Columbia Circuit on October 17, 2001. In the initial compli-
ance proceeding, I adjudicated the claims of 38 claimants. Also
during that proceeding, the parties stipulated that there were six
individuals who had either died or who had not been located. It

worked until 2001, when she left that job to attend school to study
medical billing. While at school she applied for jobs at the school.
After 2 months, her financial aid request was denied, and she quit
school to return to work. She then began working at Pasa Alta Manor,
where she worked for a year and a half. We find that Howell’s decision
to resign from Laidlaw was reasonable. She testified without dispute
that she left to attend school to create a better life for her family, and
she attended school only for 2 months, during which time she continued
to look for work. Considering the backpay period as a whole, we find
that Howell’s efforts to mitigate backpay were reasonable, and that
Howell’s decision to quit her interim Laidlaw job did not disqualify her
from backpay for the entire backpay period. We note, in this regard,
that the Respondent does not specifically argue that the 2-month period
during which Howell attended school should be excluded from back-
pay.
FIRST TRANSIT, INC. 897
preserved the claimant status of the those six for a supplemental
hearing. I later added, on a motion of the General Counsel, a
seventh individual. The circumstances of six of the seven have
now been litigated here. The seventh has been given the oppor-
tunity to do so, but never appeared.
On August 17, 2007, 4 days before the instant hearing
opened, the Board issued its decision in the initial compliance
proceeding, substantially affirming it. 350 NLRB 825; cor-
rected on October 11. Most of my findings and conclusions
were affirmed, though there were some disagreements and
some modifications. According to the parties, Respondent has
appealed that decision to the D.C. Circuit.
There are some agreed-upon limitations concerning the na-
ture of the evidence. First, it should be understood that all of
those limitations were put in place for the initial compliance
proceeding and the parties are in agreement that they remain in
place here. The principal stipulation is that the parties agree
that the individuals named in the initial compliance specifica-
tion (including the seven being dealt with here) “were dis-
charged, suspended or otherwise denied work opportunities as a
result of Respondent’s unlawfully instituted attendance policy.”
Respondent, in the stipulation, obtained a reservation to the
effect that it could still argue that the individuals were proba-
tionary employees and could have been lawfully discharged for
failing to complete their probationary period; that certain em-
ployees would have been discharged under the prior attendance
policy and that certain employees had resigned their employ-
ment and were not discharged and that some were not dis-
charged pursuant to the policy. The stipulation describes an
agreement over the formula for gross backpay, leaving for liti-
gation the issue of mitigation. A later stipulation, much like the
first, is specifically aimed at this proceeding.
In addition, the parties are in agreement that they may cite to
the record of the 2005 proceeding, as appropriate, and they
have done so. For example, Respondent has cited the 2005
testimony of its experts, Martin Gombert, and Wayne Fritz,
concerning the availability of bus driving jobs in greater Los
Angeles during the backpay periods. I did not find their testi-
mony particularly helpful or persuasive in the previous pro-
ceeding and I continue to hold that view. Even if their testi-
mony is credited concerning the availability of such jobs, those
observations about the job market as a whole, bear little upon
specific individuals set adrift by the unfair labor practices.
Such individuals find themselves in circumstances unique to
themselves and are not the commodity the experts suggest they
are. Each of the dischargees had to find his or her own way and
the fact that a job market might be favorable does not mean that
everyone will have the successful experience the experts seem
to think they should; in fact, the market is usually subdivided
for a discriminatee into smaller geographical areas more closely
connected to the location of that person’s residence.
Furthermore, a job commute that may have been acceptable
to the dischargee at the time of his or her hire by Respondent
may not be reasonable for them when the ‘comparable’ job that
Fritz or Gombert spoke of is located in a more distant city. In
any event, compliance proceedings are more fair when the in-
dividual’s specific circumstances can be scrutinized. That fair-
ness is not present not when a nebulous market overview is
applied to a specific individual. Although I did not specifically
say that in my 2005 decision, I did imply it. Given Respon-
dent’s heightened argument now, I address it in this manner:
The job market for bus drivers in Southern California is part of
the make-whole equation, but insufficient to control the find-
ings regarding specific individuals, at least without a showing
of a specific impact upon that individual. It cannot be allowed
to override what each discriminatee faced after his or her dis-
charge.
In point of fact, however, Respondent’s argument does not
really apply to the seven individuals discussed here. For the
general principles applicable to the backpay claims in this case,
I will simply refer the reader to my earlier decision and to the
Board’s commentary on review. It will serve no purpose to
restate what was said there. The parties well understand the
dynamics and are operating under them.
I will repeat, for context’s sake, the observation I made then
for claimant Donald Duplessis. It is worth remembering that
these claimants were not discharged under Section 8(a)(3) as
union activists. These were victims of an 8(a)(5) unilateral
change. In 8(a)(3) cases, the dischargees’ identities are usually
known and Regional compliance officers routinely notify them
of their obligation to keep records of their job searches. That is
not the routine in an 8(a)(5) case such as this; indeed, the vic-
tims are not usually identified until the compliance stage. For
that reason, I said in the Duplessis discussion portion of the
case (350 NLRB 825, 834–835):
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 prac-
tice. Thus, he and the others remained unidentified for years
while the case was processed. As a result no one, not the Un-
ion, 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 popu-
lated area. . . .
That observation continues to have pertinence in this second
supplemental proceeding.
There are two other issues of a procedural nature that will be
addressed. The first is the question of the applicability of the
stipulation on missing and deceased discriminatees to one indi-
vidual who never appeared—Marcus Nelons. The other is a
request to take judicial notice or, alternatively, to reopen the
record. This question is connected to the claim of Ike Johnson
a/k/a Ikey Williams. Each of these matters will be discussed in
the section dealing with those individuals.
Both the General Counsel and Respondent have filed timely
briefs and they have been carefully considered. I therefore
proceed directly to the individual claims.
The Claimants
José Avalos
José Avalos’ backpay period begins July 24, 1998. The
General Counsel has, based on the testimony of his widow
Maria Avalos, modified the backpay claim. The current calcu-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD898
lations are seen in Avalos’ Exhibit 5. Among other things, the
revised calculation recognizes that Avalos was unable to per-
form work after being hospitalized in November 1999 and
learning that his cancer was terminal. In addition, it became
apparent that his Social Security earnings record was incorrect
as it shows earnings from interim employer Ampco Systems
Parking as having been earned in 2000. Since he was unable to
work after November 1999, the modification has properly
posted those interim earnings to the fourth quarter of 1999.
The net backpay figure now being sought has been reduced to
$6651.77.
Respondent’s defense is that Avalos was not discharged pur-
suant to the unlawfully imposed absentee rules but was dis-
charged for reasons unrelated to absenteeism. The evidence is
in conflict. The General Counsel, quite reasonably, relies on
Ryder’s employee profile and change form which was issued at
the time of the discharge and found in Avalos’ personnel jacket.
That document, dated August 22, 1998, unambiguously states
that Avalos was discharged for absenteeismBox 34 Status Rea-
son: “DISC-ATTND/TARDY,” ‘DISC’ being an abbreviation
for ‘discharge.’
Respondent has presented other documentation which
strongly suggests that the discharge was actually because
Avalos failed to make destination announcements over his
coach’s public address system. Ryder required drivers to make
such announcements to comply with the Americans with Dis-
abilities Act. Respondent argues that Ryder’s profile and
change slip was simply miscoded and the true reasons are es-
tablished by other evidence. Indeed, the Union’s grievance of
August 17, 1998, notes taken by operations manager Laurie
Dobson at the grievance meeting held August 24 and her fol-
low-up letter to the Union that same day all support that conten-
tion. These documents, too, came from Avalos’ personnel
jacket. Dobson did not testify in either the previous proceeding
or the current one even though her name was mentioned fre-
quently in both. Instead, Respondent asked Sal Garcia, who in
1998 was Ryder’s safety manager, to testify. He is now Re-
spondent’s assistant general manager. Garcia testified that he
attended the August 24 grievance meeting which Dobson wrote
about and confirmed the accuracy of what the documentation
has recorded.
The Union’s grievance is relatively minimal, simply assert-
ing that it wished to have a meeting concerning Avalos’ termi-
nation. It did not incorporate a no-just cause theory as part of
the grievance, but simply requested a discussion about the rea-
sons for Avalos’ discharge. Dobson’s confirmation letter as-
serts that Avalos “was terminated on July 28, 1998 after failing
to comply with legal requirements of calling ADA announce-
ments three times within one year.” After receiving the letter,
the Union did not pursue Avalos’ grievance any further and let
the matter drop. There is no evidence that Avalos ever disputed
that reason.
Frankly, comparing the details set forth in Dobson’s letter to
the minimal coding in the personnel change form, I find that it
is more likely than not that the change form incorrectly coded
Avalos’ discharge as being related to the attendance rule, when
it was not. The entire discussion relating to his discharge is
focused only on his failure to make next-stop announcements.
I find, therefore, that Avalos was not a victim of the improp-
erly imposed attendance rule. It follows that Avalos is not
entitled to backpay under the Board’s remedial order.
Denny Benavides
Ryder hired Denny Benavides as a driver-trainee in January
1999, assisting him to become licensed as a professional driver.
Through Ryder’s training program he earned a Class B drivers
license with a passenger endorsement. He was terminated on
August 13 that year having acquired sufficient attendance
points to warrant his discharge under the unlawfully imposed
attendance system. Although his backpay period actually ex-
tends from August 14, 1999 to January 23, 2002, he was incar-
cerated in late December 1999. As a result, backpay is only
sought from the date of his discharge until his incarceration.
The figure sought is $4796.80, covering only the third and
fourth quarters of 1999.
Although Respondent doubts Benavides’ testimony that he
sought interim employment after his discharge, there is really
no reason to question his testimony. He said he applied for bus
driving jobs with the Metropolitan Transportation Authority
(Los Angeles’s city bus system) and OMNI Transit (in San
Bernardino). He also remembered applying for retail sales jobs
with some local grocery chains (he no longer remembers the
names) and the 99¢ Only Store chain. He testified that he be-
came quite worried over his lack of success as he was trying to
support a newborn child. He also used an unemployment
agency to no avail.
Benavides was arrested in late September on charges of
transporting marijuana, but was only jailed for 2 or 3 days. He
was released and continued to seek work, applying for work
with American Tower, a construction company. His trial began
sometime in mid-December and he was found guilty later that
month. He began serving his sentence of 30 months around
that same time.
Respondent principally argues that Benavides should be de-
nied backpay as of the date of his arrest, in September, meaning
the entire fourth quarter claim should be stricken due to its
zero-tolerance policy concerning drugs and alcohol. I am not
persuaded. It seems to me that the Regional Director’s specifi-
cation is entirely in accord with Board practice, which focuses
primarily on the claimant’s efforts in the job market.
But beyond that, Respondent’s argument falls short. I do
agree that Respondent had a zero-tolerance policy. Garcia’s
testimony in the earlier case is appropriately requoted here.
A. Our drug and alcohol policy is zero tolerance. We
have pre-employment 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.
FIRST TRANSIT, INC. 899
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.
Moreover, in the earlier case I cited an employee witness’
testimony to the effect that the Company did not want “guys
stoned driving your bus.” In fact, the drivers were all subject to
random drug/alcohol testing. The policy also manifested itself
during the hiring procedures. Applicants who had convictions
involving misuse of drugs or alcohol were not hired.
On the other hand, the policy is not as clear when a driver is
only accused, without supporting proof, of violating the zero-
tolerance policy. Certainly Respondent has cited no earlier
circumstance where an arrest alone was sufficient proof of a
policy violation. Nor is there any written rule about accusa-
tions short of convictions. In essence, Respondent is asking me
to engraft a corollary to its zero tolerance policy. Moreover,
from a societal point of view, accusations, without more, are
not proof that the employee has in fact breached the policy.
Something approaching scientific certainty, such a failing the
drug screen, would be adequate. A conviction would also be
sufficient.
Of course, scientific proof would not have been available in
a case such as Benavides’. He was never accused of using the
marijuana, only transporting it. And, it may be inferred from
his testimony, he claimed he did so unknowingly. Had such a
defense been credited, no conviction would have followed and
he could not have been deemed to have breached Ryder’s zero
tolerance policy. Accordingly, even with the September arrest,
no one had actually demonstrated that Benavides had contra-
vened the zero tolerance policy until the judgment of convic-
tion. Accordingly, Respondent’s defense, based on the zero
tolerance policy must be rejected. The Regional Director’s
specification is sustained in the amount of $4796.80.
Shawn Howell
Ryder hired Shawn Howell as a bus driver on February 5,
1997. It discharged her on June 6, 1997, though her last day of
work was 3 days earlier, June 3. The profile and change form
shows that she was discharged for attendance reasons, follow-
ing the coding system seen in the earlier case (D2). That form
was signed by Ryder’s then General Manager, Wayne Fritz.1
It would appear from her testimony that Howell had com-
pleted her probation period at the time she was discharged. The
General Counsel has referenced the 60-day probationary period
set forth in the collective-bargaining agreement (in evidence in
the previous proceeding as R. Exh. 4; see art. XXII, sec. 4
thereof), apparently anticipating an argument from Respondent
that Howell was still on probation when her employment
ended. Respondent has not made that argument, so in a sense
the concern is moot. Yet, Howell was only employed about 90
days.
Instead, Respondent asserts, first, that Howell quit and was
not discharged, Second, it contends that she failed to mitigate
her backpay when she supposedly committed misconduct in
allowing herself to be discharged by interim employer, Diversi-

1 So identified when Fritz testified in the earlier proceeding on No-
vember 1, 2004.
fied Paratransit. It also wants an offset for Howell’s work as a
hairdresser.
The last, the hairdressing earnings is easily disposed of.
Howell has moonlighted by doing hairdressing at her home
since the 1980’s, primarily for her family members and friends.
She has done it while employed full time and also when she
was unemployed. Moreover, it was intermittent. When she did
decide to provide that service, it was only a few times a week at
most; usually not even that frequently. While working for Ry-
der, she did not resort to that skill at all in the 5 months she was
there, but she might have, had she remained. Typically, it was
when she was ‘low on money’ and her needs had become more
acute. At best she only earned about $20 or $30 a week. In any
event, those earnings are so intermittent, they cannot be liqui-
dated with any certainty.
Frankly, the hairstyling work appears to be mostly
moonlighting; earnings she would have made even if she had
remained employed by Ryder, whose pay rate, at her seniority
level, was only $8 per hour. There is no reason to modify the
specification based on something this elusive.
Respondent’s principal defense is that Howell quit on June 3,
1997. The supporting document, inconsistent with the profile
and change form discussed above, is an attendance report form
dated June 3. It demonstrates that she had received two atten-
dance points for being absent that date, showing a point total of
11 in a 90-day period. Howell acknowledged signing the docu-
ment. Underneath her signature is a handwritten entry
“OVERSLEPT”—“QUIT.” She testified that, except for her
signature, she did not write on the document at all. She also
denied that she had quit. Respondent has not provided any
evidence regarding the document, particularly who wrote the
other words that appear on it. In that regard, it should be noted
that in most companies, attendance/timekeeping records are
frequently delegated to a nonsupervisory employee. Here we
have no idea who wrote the document, when the final notation
was made (before or after Howell signed it) or what the circum-
stances were. On the other hand, the employee profile and
change form was reviewed by Fritz, Respondent’s general man-
ager, who approved the D-2, attendance rule reason.
Under the circumstances, it is fair to conclude that whatever
the general manager said is more authoritative than the reason
provided by an anonymous attendance record keeper, who
made an entry exceeding the purpose of the form. Consistent
with the personnel form approved by the general manager,
Howell testified that she did not quit, but was fired. Therefore,
I find that Respondent has not demonstrated that Howell quit
her employment with Ryder.
As for losing her job with Diversified Paratransit, the facts
are fairly straightforward. She apparently obtained this mini-
mum wage job in the fall of 1997, 4 or 5 months after Ryder
fired her. She had spent the intervening months caring for her
sister’s children, as the sister was not available to do so. How-
ell testified:
Q. [BY MR. SILVERSTEIN] What was the first job you
had after Ryder/ATE?
A. [WITNESS HOWELL] I think it was a warehouse job.
I think it was just a temporary little warehouse job. I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD900
worked a couple of warehouses, and then I started driving
for another driving company.
Q. What company was that?
A. I believe that was Diversified Paratransit.
Q. In fact, you only worked at Diversified for a very
short amount of time.
A. Yeah, because the pay was very low. It was like
minimum wage, and we were like lifting up people and
putting them on the bus lift, and it just wasn’t worth it.
Q. So, you resigned from Diversified because you
were concerned you weren't earning enough money?
A. I wasn’t earning enough money. They fired me
because I would miss days because I would try to go on
interviews to try to get other jobs, and they knew that, so...
Q. So, Diversified fired you for attendance issues?
A. Well, they felt that I wasn’t happy with my job, so,
they basically let me go, and, I wasn’t happy with my job.
Q. But the actual reason was that you were missing
work, right?
A. Yes.
Q. Now, you worked at Diversified—I’m sorry, you
worked there for over a year, didn't you?
A. Yes.
Q. During the time that you worked at Diversified,
you were unhappy with the pay that you were earning.
How many other places did you apply to, to earn more
wages?
A. Oh, I didn’t start applying until like maybe the end
of my employment there, so I think I had maybe applied to
maybe like two or three other places.
Respondent challenges Howell’s right to look for other jobs,
triggering her discharge from Diversified. That behavior, it
contends, amounts to gross misconduct. In California, the
minimum wage as of September 1, 1997, when Howell began
working for Diversified Paratransit, was $5.15 per hour,2 $2.85
less than the $8 she had been receiving at Ryder, less fringe
benefits equivalent to Ryder’s.3 It is fair to observe that mini-
mum wage in greater Los Angeles is insufficient to support
oneself, much less a family, particularly a family thrust upon
Howell by circumstances. I find her decision to work for Di-
versified Paratransit for over a year and to then seek a better
situation is entirely reasonable. Indeed, I strongly disagree with
those who would suggest that this job was substantially equiva-
lent to the job she had had with Ryder. The only similarity was
the driving; the wages were starkly different and the fringe
benefits nonexistent. Although Little Rock Airmotive, 182
NLRB 666 (1970) is a striker case, it sets forth the considera-
tions which must be examined to determine if a job is substan-
tially equivalent. One of those is whether the new job provides

2 See the California Department of Industrial Relations webpage
‘History of California Minimum Wage,’ www.dir.ca.lwc/mini-
mumwagehistory.htm. (Website last visited January 30, 2008.)
3 See Appendix B of each of the collective-bargaining contracts in
effect during the years 1996–2000, R. Exhs. 4 and 5, in evidence in the
initial proceeding. These include funeral leave with pay, a health plan
(which changed when the second collective-bargaining contract went
into effect), paid holidays, paid vacations, and sick leave.
fringe benefits. Diversified Paratransit did not provide them.
Therefore, it was certainly not gross misconduct for Howell to
try to find work that paid better; work that was at least more
equivalent to the Ryder job than bare minimum wage work.
East Texas Steel Castings Co., 116 NLRB 1336 (1956).
Howell’s comment that Diversified had determined that she
‘wasn’t happy’ in that job makes sense in that context. She
wasn’t happy; under Board rules a discriminatee is entitled to
look for a substantially equivalent job—even if she abandons a
job to do so. The “lowering of one’s sights” concept is hardly
immutable. If a discriminatee is forced to lower her sights for a
while in seeking interim employment, that choice does not
mean that the sights cannot be raised again. However, one
views these facts, Howell did not engage in gross misconduct in
losing the interim job while looking for a better one.
Finally, Respondent argues that Howell failed to mitigate the
backpay in general terms. This argument is unpersuasive as
well. Her entire backpay period shows she held interim em-
ployment third quarter of 1997 through the end of the backpay
period in the first quarter of 2002. As held in the previous case,
evidence of an overall effort to seek employment overrides any
concern that portions of the period should be rejected as evi-
dence of a failure to mitigate. Black Magic Resources, 317
NLRB 721 (1995); Rainbow Coaches, 280 NLRB 166, 179–
180 (1986).
Considering the evidence as a whole, as informed by Re-
spondent’s defense, I find that Respondent has not proven that
Howell’s backpay should be reduced beyond the adjustments
the General Counsel has already made. Accordingly, Howell is
entitled to the sum set forth in the specification, $34,597.40.
Ike Johnson a/k/a Ikey Williams
This claimant’s birth name is Ike Johnson, but he prefers his
mother’s maiden name which is Williams, together with what
would appear to be a family diminutive first name, ‘Ikey.’ I
shall refer to him as Williams, though the compliance specifica-
tion uses ‘Johnson.’ Johnson is currently incarcerated in the
California prison system. His testimony was taken at the Lan-
caster State Prison.
Ryder hired Williams in 1997. It had trained him as a bus
driver and he succeeded in obtaining a Class B commercial
drivers license with passenger and air brake endorsements.
Although Williams is clearly subject to the stipulation set forth
in General Counsel’s Exhibit 1, that he was discharged as the
result of the unlawful imposition of the attendance policy, nei-
ther the General Counsel nor Respondent have offered his em-
ployee profile and change form in evidence. As a result, I can-
not determine the date Williams was hired.4 Nevertheless, he
testified that he was earning $8.50 per hour at the time he was
discharged. He also acknowledged that the reason he was
given for the discharge was that he had been late that day. He
did not specifically refer to having acquired attendance points,
but that may be inferred from the stipulation.

4 There is an error in the transcript at Tr. 204:17 to the effect that he
was hired on about May 20, 1997. That is the day he was fired, not
hired. Accordingly I direct that the word “hired” on l. 17, of that page
be corrected to “fired.”
FIRST TRANSIT, INC. 901
The backpay specification asserts that Williams’ backpay pe-
riod begins on May 21, 1997 and ends on January 23, 2002. It
initially alleged that his net backpay was $113,346.08. After
assessing Williams’ testimony, counsel for the General Counsel
has, in its brief, authorized a reduction to account for some
previously unknown interim earnings. Nevertheless, the Gen-
eral Counsel has not suggested an actual figure.
Respondent has not concerned itself with an alternative fig-
ure, instead being content to argue that Williams failed to make
reasonable efforts to search for work, thereby challenging the
specification in its entirety. Assuming that its argument is not
accepted, Respondent alternatively argues that Williams’ back-
pay period should end in 1999 when he suffered a stroke ren-
dering him unable to perform as a driver in the passenger indus-
try. Finally, it asserts that Williams has been a long-time
criminal and is now serving a lengthy sentence for the felony of
armed robbery, having been arrested on July 4, 2001 and never
released. In support, it points to some youthful convictions
(one as a juvenile) for some misdemeanors. This last argument
fails. Respondent’s own policy concerning convictions does
not apply to misdemeanors, only felonies. Even that allows for
exceptions. See the earlier case, 350 NLRB 825, 850 (Robin-
son application). Moreover, juvenile convictions need not be
revealed as a matter of law. This defense is rejected.
I regard the 1999 stroke to be the most important issue here.
In this regard Respondent has filed a Request for Judicial No-
tice, or in the alternative, a Motion to Reopen the Record. The
request that I take judicial notice (“official notice” in Board
proceedings) of several U.S. Department of Transportation
regulations governing commercial drivers is actually unneces-
sary. Pointing to them is simply argument, based on public
regulations which any judge may take into account to the extent
necessary for a just result. The duty to reach a just result cov-
ers looking at both Federal and State statutes and regulations.
I start with the California rules concerning the licensing of
drivers. These apply to all drivers, both commercial and non-
commercial. Section 103900(a) of the California Health and
Safety Code requires physicians to report5 to the local health
officer the identity of any patient older than 14, any disorder
characterized by a lapse of consciousness. As seen in section
(b) of that statute, the local health officer6 is obligated to trans-
mit that diagnosis to the Department of Motor Vehicles. Such a
report will trigger an administrative inquiry by the DMV to
determine if that individual remains competent to drive a motor
vehicle on the state’s streets and highways.7 After it has made

5 § 103900(a) Every physician and surgeon shall report immediately
to the local health officer in writing, the name, date of birth, and ad-
dress of every patient at least 14 years of age or older whom the physi-
cian and surgeon has diagnosed as having a case of a disorder charac-
terized by lapses of consciousness. . . .
b) The local health officer shall report in writing to the Department
of Motor Vehicles the name, age, and address, of every person reported
to it as a case of a disorder characterized by lapses of consciousness.
6 Normally the director of the county health services department.
7 13 CCR §110.01. Factors Considered in Lapse of Consciousness
Determinations.
The department [DMV] may suspend or revoke the driving privilege
of any individual that the department determines has a disorder charac-
its inquiry, the DMV may revoke the individual’s driving privi-
leges or place limitations on them as deemed appropriate.8
Under California’s scheme, therefore, certain steps are sup-
posed to be taken to protect the public from a driver who has
suffered a debilitation which prevents him or her from safely
operating a motor vehicle. That scheme first requires a physi-
cian’s report to a county health officer. That officer is to notify
the DMV that a health issue has arisen regarding the driver who
suffered the debilitation. This is followed by a DMV adminis-
trative proceeding to determine what steps, if any, the individ-
ual must take to retain his or her driving privileges.
Insofar as these rules were applied to Williams, his testi-
mony only partially reveals what must have transpired. He had
a stroke sometime in 1999, when he was 30 years of age. He
was hospitalized and then unable to ‘move’ for 6 months. Wil-
liams: “I was down for about like six months where I couldn't
move. . . When I had my stroke, I couldn't speak, I couldn't do
nothing.” It seems likely to me that following the statutory
reporting mandate, the treating physicians at the hospital or
afterwards reported the stroke, as required, to the appropriate
county health official. Normally, that official would pass the
information to the DMV; it would certainly be the expected
routine. But on this record, the DMV never acted. Why not?
The following testimony provides a somewhat obscured an-
swer:
Q. BY MR. SILVERSTEIN: After your stroke, were you
ever given medical clearance to drive a commercial vehi-
cle again?
A. [WITNESS WILLIAMS] I never tried to—I always
felt like that—because I was driving my car and all that
kind of stuff. You know what I'm saying? And when you
have a stroke, you tend to be embarrassed and stuff like
that right there because you would think that this right
here would never happen to you. You know what I'm say-
ing? So you tend to be shocked.
Q. So is the answer to my question that no doctor or
company doctor or government agency ever certified you
as fit to drive a commercial vehicle after you had the
stroke?
A. I never tried to get a clearance or nothing like that
right there at that time.
As a holder of a Class B license, Williams knew that his stroke
had created a legal problem for himself. After the stroke, he
still possessed that license. At the very least it allowed him to
continue to drive his car. He did not want to lose that key to
mobility. That key to finding a job. That key to appearing
normal. He characterizes the problem as one of ‘embarrass-
ment.’ In reality, it was one of practicality. The DMV didn’t
seem to be aware of his stroke, so why would he call their at-
tention to it? If he had, he would have become subject to a

terized by lapses of consciousness or episodes of marked confusion, as
defined in Title 17, Division 1, Chapter 4, Sections 2800 through 2808
of the California Code of Regulations, which affects the individual's
ability to drive safely and/or to have reasonable control of a motor
vehicle.
8 13 CCR §110.02.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD902
DMV administrative inquiry which may well have cost him the
privilege to drive at all, much less his Class B status.
On top of the state rules are the federal rules concerning
commercial drivers, such as he. 49 CFR §391.45 (1998) sets
forth the medical examination requirements,9 while 49 CFR
§391.41 sets forth the physical qualifications.10 These are strin-
gent and ongoing requirements which a commercial driver must
always be able to meet.
Certainly, as Respondent argues, had the stroke occurred
while Williams was driving buses for Ryder, Ryder could not
have missed noticing it due to the absences it would have gen-
erated and the connected explanation. On his return to work,
Ryder would have required recertification, a process which he
seems unlikely to have accomplished.
In addition, it was a process which Williams desperately
wished to avoid for he feared, and no doubt knew, he could not
succeed. When he finally recovered his ability to walk, he
walked, and still walks, haltingly. He minimizes it, describing
it as a ‘somewhat’ limp. Something profound did occur here.
No one has yet measured his reaction time, but it is highly
unlikely given his current demeanor that he could operate
brakes quickly enough to be regarded as safe while driving a
bus. The risk of an accident is very high. I do not believe any
public transit agency or company would be able to accommo-
date that risk. It would not put its passengers in such obvious
jeopardy.
I conclude, based on Williams’ poststroke behavior, his tes-
timony and supported by my view of his physicality, that the
stroke ended his career as a commercial driver and he has
known it ever since he knew he could not regain full use of his
legs. His behavior is a good barometer against which the truth

9 In pertinent part: 49 CFR Part 391 reads:
Sec. 391.45 Persons who must be medically examined and certified.
Except as provided in Sec. 391.67, the following persons
must be medically examined and certified in accordance with Sec.
391.43 as physically qualified to operate a commercial motor ve-
hicle:
. . . .
(b)(1) Any driver who has not been medically examined and
certified as qualified to operate a commercial motor vehicle dur-
ing the preceding 24 months; or
. . . .
(c) Any driver whose ability to perform his/her normal duties
has been impaired by a physical or mental injury or disease.
10 49 CFR Sec. 391.41 Physical qualifications for drivers.
(a) A person shall not drive a commercial motor vehicle
unless he/she is physically qualified to do so and, except as pro-
vided in Sec. 391.67, has on his/her person the original, or a pho-
tographic copy, of a medical examiner's certificate that he/she is
physically qualified to drive a commercial motor vehicle.
b) A person is physically qualified to drive a commercial mo-
tor vehicle if that person—
. . . .
(8) Has no established medical history or clinical diagnosis of
epilepsy or any other condition which is likely to cause loss of
consciousness or any loss of ability to control a commercial motor
vehicle;
(9) Has no mental, nervous, organic, or functional disease or
psychiatric disorder likely to interfere with his/her ability to drive
a commercial motor vehicle safely; . . . .
of his testimony can be measured. Instead of qualifying his
testimony as true, his behavior shows him to be untrustworthy
on the point. I find, therefore, that Williams became unquali-
fied to drive professionally when he suffered the stroke and
chose to conceal his condition from the licensing authorities.
Accordingly, his backpay period will be deemed to have ended
when he suffered the stroke.
Williams could not recall with any certainty the date that he
had the stroke, opining that it occurred in mid-1999. It seems
reasonable, therefore, to stop his backpay at the end of the sec-
ond quarter of that year. See generally the so-called ‘hazards of
living’ rule set forth in American Mfg. Co. of Texas, 167 NLRB
520, 522 (1967). This same rule was invoked in the earlier
proceeding with regard to claimants Clide Aaron and Natasha
McQueen.
Respondent’s argument that the entire specification should
be stricken due to Williams’ failure to make a reasonable effort
to seek work must be rejected. Williams testified that he did
seek work after he was discharged. It is true that he was unable
to recall every effort but that is understandable given that 9 or
10 years had passed before he was called to testify about his
efforts. Nevertheless, he did say that he applied at two bus
companies, MTA (the City of Los Angeles Transit Authority)
and Claremont Transit (the City of Claremont’s Dial-a-Ride
system) and also sought work with several temp agencies, in-
cluding Labor Ready, finding some warehouse work. In that
regard he became a certified forklift driver in 1998 and worked
in various warehouses that year. He also remembered applying
with Payless Shoe Stores. He was not able to allocate his un-
successful searches to a particular year. The General Counsel
correctly observes that claimants are not disqualified from
backpay because of poor record-keeping or an uncertain mem-
ory. Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966), and
Kansas Refined Helium Co., 252 NLRB 1156 (1980). Accord-
ingly, I conclude that Williams made reasonable efforts to find
employment from the second quarter of 1997 through the sec-
ond quarter of 1999.
Also, as noted above, the General Counsel agrees that some
adjustments need to be made due to Williams’ testimony that
he had six or seven jobs which averaged 1-month in length and
paid him $40–50 per day. These were paid in cash and no re-
cords exist to assist in the proper quarterly allocations. I shall
therefore adjust his 1998 interim earnings by applying a $45-
per-day interim earnings credit equally throughout the four
quarters. That works out to 140 days (using a 5–day week for
seven 4–week months. (1 month = 20 days. 20 days x 7
months = 140 days.) 140 days x $45 = $6300. One-fourth of
$6300 = $1575 to be allocated to each quarter of 1998. The
backpay chart then becomes:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 111
903
Year Qtr. GrossBackpay
Interim
Earnings
Interim
Expenses
Net
Backpay
Medical/
Other
Total
Backpay
1997 2Q $2,756.79 $-0- -0- $2,756.79 $-0- $2,757.79
1997 3Q 6,276.40 -0- -0- 6,276.40 -0- 6,276.40
1997 4Q 6,668.37 -0- -0- 6,668.37 -0- 6,668.37
1998 1Q 6,864.81 1,685.00* -0- 5,179.81 -0- 5,179.81
1998 2Q 6,864.81 1,575.00 -0- 5,289.81 -0- 5,289.81
1998 3Q 6,864.81 1,575.00 -0- 5,289.81 -0- 5,289.81
1998 4Q 6,958.89 1,575.00 -0- 5,383.89 -0- 5,383.89
1999 1Q 7,006.03 -0- -0- 7,006.03 -0- 7,006.03
1999 2Q 7,006.03 -0- -0- 7,006.03 -0- 7,006.03
Totals $57,266.94 $6,410.00 $-0- $50,856.94 $-0- $50,856.94
* Includes $110 from original specification.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD904
Accordingly, based on the above modification, the backpay
due Williams is $50,856.94.
Marcus Nelons
Marcus Nelons is the most elusive backpay claimant I have
seen in over 40 years with the Board. His right to backpay
arose with the Board’s unfair labor practice decision set forth in
its decision reported at 331 NLRB 889, dated July 31, 2000.
That order was enforced on October 17, 2001 by the District of
Columbia Circuit Court of Appeals. In the meantime, as Re-
spondent became the successor with liability (per an agreement
with the Board’s Regional Director dated September 8, 2001),
the Regional Office’s compliance officer began trying to iden-
tify those employees affected by the unlawfully imposed atten-
dance policy. At some point in that process he identified 37
employees, including Marcus Nelons. The identifications were
generally made from Ryder’s personnel records, including the
profile and change forms seen throughout both this and the first
compliance proceeding. The initial compliance specification
was issued on May 27, 2004.
When the first hearing before me was coming to a close in
mid-November 2004, it had become apparent to the parties that
at least five of the identified individuals would not be located in
a timely way. Avalos, moreover, had died in Mexico and very
little was known about him. The General Counsel and Respon-
dent entered into a stipulation (GC Exh. 7 in the 2004 proceed-
ing) which I approved. It has been attached to the supplemental
specification here. In addition, I later ordered Shawn Howell to
be included. The purpose was to preserve these employees’
situations for later examination, while at the same time to per-
mit Respondent the opportunity to defend against those claims
in the same manner as those who were then being presented in
the first proceeding. At this point in the second proceeding, the
only one still living who has not been presented in that fashion
is Nelons.
In pertinent part, the stipulation Regarding the Missing and
Deceased Discriminatees listed their names, recited that there
had been no opportunity to examine them and that their situa-
tions were to be put off until another day. That day, of course,
is the instant proceeding. As part of that agreement, Respon-
dent agreed to segregate and maintain under its control the sum
of $643,589 which was the amount of backpay, plus interest,
initially alleged to be owed to those individuals.
The fifth paragraph of the stipulation states, in pertinent part:
“If any of the [ ] missing discriminatees are located within 1
year of the date of the Administrative Law Judge’s Decision,
the parties reserve the right to a supplemental compliance hear-
ing to appropriately examine the discriminatees. [Reference to
Respondent’s reservation of certain defenses omitted.] This 1-
year time limit applies only to locating the whereabouts of the
missing discriminatees and to acquiring information relating to
interim earnings of the deceased discriminatee (including
whether or not he is still living). The 1-year time limit does not
include the time it will take to conduct a compliance investiga-
tion or to hold a supplemental compliance hearing.”
The sixth and final clause states: “If any of the [ ] named
missing discriminatees are not located within 1 year of the Ad-
ministrative Law Judge’s Decision, then Respondent’s obliga-
tion and liability owed the relevant discriminatee(s) will be
eliminated. [Limitation concerning the deceased discriminatee
omitted.]
My decision issued on July 29, 2005. Therefore, under the
terms of the stipulation, the compliance officials had 1 year
from that date to locate all five of the living, missing claimants.
Beginning as early as 2002, counsel for the General Counsel
and Respondent have both paid for numerous skip trace
searches in an ongoing effort to find Nelon—to little or no
avail. However, he momentarily surfaced in March 2006 and
gave an affidavit to the Regional Office on April 20, 2006. In
the affidavit, he provided an address and, apparently, a cellular
telephone number. He also advised in May 2006 that he would
keep in touch with the compliance office. The address he gave
was essentially false; it certainly was not a residence. Respon-
dent reports that it was a gasoline service station and that the
operators, in 2007, told Respondent’s process server that they
did not know Nelon and had no information about him. Re-
spondent also sent a subpoena to that address by FedEx. It was
returned unclaimed. In August 2007 it attempted one last skip
trace. Like the others, it was unsuccessful. In addition, the
telephone number he had provided the Regional Office was no
longer in service. It is clear that Nelons’ promise to stay in
touch has not been kept.I am in agreement with the General
Counsel that it located Nelons within the year provided by the
stipulation. But my agreement only goes so far. The General
Counsel wishes to now hold Nelons’ backpay in escrow relying
on the Starlight Cutting11 policy of requiring respondents to
hold the backpay sum for a missing discriminatee in escrow for
a year and if the missing claimant cannot be found within that
time, the claim will be considered to have lapsed. While I am
sympathetic with the General Counsel’s desire to take every
reasonable step to see discriminatees are made whole for their
losses, I do not find myself in agreement with the suggestion to
further delay matters here. There must be a definitive end to
litigation at some point.
Reviewing the matter, it appears that efforts to locate Nelons
were begun as early as 2002. In May 2005 Respondent placed
over $600,000 in an escrow-equivalent account as a guarantee
pursuant to the stipulation. At that time Nelons’ gross backpay
was roughly $86,000. When he came into the compliance of-
fice in July 2006, he provided some information and authorized
the Social Security Administration to provide his earnings re-
cords. This resulted in a downward adjustment to a net back-
pay of a little over $62,000.
His April 2006 promise to stay in touch with the Regional
Office came to naught. Indeed, he provided what was essen-
tially a false residence address and a cell phone number which
was useless. I, for one, must consider the question of whether
his appearance really constituted compliance with the 1-year
requirement of the stipulation. Literally, of course, it did.
Functionally, it did not, because he misled the Regional Office
into thinking he could be found when needed. I do not fault
him for changing his residence. I fault him for giving a false
address in the first place. That, alone, demonstrates that he has
no real interest in cooperating with the Board in its quest to

11 284 NLRB 620 (1987).
FIRST TRANSIT, INC. 905
remedy the unfair labor practices. But he compounded even
that. He provided a cell phone number which became useless.
Finally, he promised to advise of any changes in his contact
information. That promise was not kept.
I find, in these circumstances, that Nelons has deliberately
defeated the Regional Office’s efforts to assist him with his
backpay. Moreover, as of July 29, 2006, his money had already
been kept available for a year as required by Starlight Cutting.
Indeed, the money was still there at the time of this hearing,
after another year had passed. Beyond that, Respondent made
proper efforts to subpoena him to the August 21, 2007 hearing.
Moreover, had he appeared in the Regional Office during the
two hearing days held there (the second day was September 20,
2007) he would have been heard, for I declined to rule on Re-
spondent’s motion to strike the claim until the hearing was
over. (The third and last day of the hearing was unavailable to
him, as it was held in the secure area of a state prison, but he
still could have contacted the compliance officer who in turn
would have taken the proper steps and notified counsel for the
General Counsel.) Despite these efforts and opportunities there
was only silence coming from Nelons’ end. He is, in the final
analysis, a noncooperative backpay claimant.
Under all the circumstances, and for the reasons cited above,
I will grant Respondent’s motion to dismiss the backpay speci-
fication for Marcus Nelons.
Valerie Pedraza
Valerie Pedraza’s backpay specification was modified twice,
the second time after her testimony was completed. See
Pedraza Exhibit 2. This modification took into account the
time periods where she was not seeking work. Under that ver-
sion, her backpay period begins on July 4, 1997 and ends on
January 23, 2002. In essence, Respondent, whose counsel par-
ticipated in the modification, has accepted it as accurate.
Respondent’s only defense to the modified specification is
its argument that she should be denied backpay altogether be-
cause she “wholly failed to make any efforts whatsoever to
mitigate her damages.” It is true that she did not seek interim
employment until a year and a half had passed after Ryder dis-
charged her. She had chosen to stay home to care for her chil-
dren. Of course, that gap is not a reason to deny her backpay
altogether; it is simply a reason to deny her quarterly gross
backpay for the quarters where she was not in the job market.
The most recent specification accomplishes exactly that. In
fact, that specification also denies her two quarters in 2000 for
the same reason. Pedraza testified, though, that she sought and
obtained work at other times covered by the backpay period.
The specification shows interim earnings at all other times.
Indeed, her testimony explains it, though it is not necessary to
recite it given Respondent’s acceptance of the modified specifi-
cation. Respondent’s argument that Pedraza’s specification be
denied in its entirety does not address any more specific issue.
Accordingly, it has not demonstrated that the specification is
not reasonable.
As no other defense is before me, I shall accept the specifica-
tion set forth in Pedraza Exhibit 2. She is entitled to the net
backpay figure stated there: $25,703.18.
Tyrice Turner
Tyrice Turner’s backpay period is very short as she died
about a month after she was discharged. Her backpay period
runs from June 17, 1997, to the date of her death on July 27,
1997. Respondent offered no evidence to demonstrate that
Turner had removed herself from the job market during that
time. Her backpay specification stands unrebutted. Accord-
ingly, her estate is awarded the amount set forth in the specifi-
cation: $2149.94.
Conclusion
The liquidated net backpay for each of the employees dis-
cussed in this second supplemental proceeding is set forth in
the chart, together with the total.
Name of Backpay Claimant Net Backpay
José Avalos -0-
Denny Benavides $4,796.80
Shawn Howell 34,597.40
Ike Johnson a/k/a Ikey Williams 50,856.94
Marcus Nelons -0-
Valerie Pedraza 25,703.18
Tyrice Turner 2,149.94
Total Net Backpay $118,104.26