Bellflower Unified School District (PERB 2544EA)

Note: Employee Names Redacted
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 32,
Charging Party,
v.
BELLFLOWER UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5955-E
PERB Decision No. 2544a
March 24, 2022
Appearances: Andrew J. Kahn, Chief Counsel, and Alex S. Leenson, Staff Attorney,
for California School Employees Association, Chapter 32; Law Offices of Eric Bathen,
by Eric Bathen and Richard D. Brady, Attorneys, for Bellflower Unified School District.
Before Shiners, Krantz, and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by both parties to a proposed decision issued by an
administrative law judge (ALJ) as part of ongoing compliance proceedings. In this
decision, we summarize the relevant factual and procedural background, analyze the
major compliance issues, and explain significant methods and calculations relevant to
ascertaining monetary damages. Although we affirm most of the ALJ’s determinations
and incorporate substantial parts of the proposed decision and its appendix, we
correct several errors and supplement the ALJ’s analysis in response to the parties’
exceptions and based on our de novo review.

BACKGROUND
Bellflower Unified School District is a “public school employer” within the
meaning of section 3540.1, subdivision (k) of the Educational Employment Relations
Act (EERA).1 California School Employees Association, Chapter 32 (CSEA) is an
“exclusive representative” within the meaning of Government Code section 3540.1,
subdivision (e). The bargaining unit of District employees that CSEA represents
includes the Bus Driver position.
I. 	Drivers’ Pre-Layoff Work During the School Year and Summer
Prior to the summer of 2014, the District employed 10 Bus Drivers: D.C., M.G.,
W.G., R.G., T.H., N.H., E.Q., E.V., D.W., and S.B.. Each driver worked during the 10-
month school year (from September through June), and some drivers worked over the
summer, as part of the District’s Extended School Year (ESY) program. To transport
students to ESY classes, the District assigned driving shifts using a seniority-based
bidding process. Approximately half the drivers typically received ESY assignments in
any given summer.
II. 	The District’s Subcontracting and CSEA’s Resulting Unfair Practice Charge
In about February 2014, District Associate Superintendent of Business and
Personnel Services Marcy Delgado notified CSEA that the District was considering
contracting out its bus operations. The District began soliciting bids for the work. On
May 1, 2014, the District sent its drivers a “Notification of Reasonable Assurance” that
1 EERA is codified at Government Code section 3540 et seq.
2

they would return to work the next school year, starting on September 4, 2014.
However, on June 27, 2014, the District notified all 10 drivers that they were being laid
off effective August 27, 2014. At the time of the layoff, each of the laid-off employees
had been a District driver for at least 10 years, and each was a dues-paying member
of CSEA. None of the drivers worked for the District in July 2014 or any time
thereafter. The District has not offered to reinstate any drivers.
In the summer of 2014, the District contracted with a private bus company,
American Logistics, to transport students to the ESY program. That agreement expired
after the 2014 ESY, and there is no evidence that the District used American Logistics
at any time thereafter. In summer of 2014, the District also began offering families $25
per day to transport students to and from the ESY program without using District bus
services. The District has continued this practice since 2014.
Meanwhile, Hemet Unified School District (Hemet USD) bid to contract with the
District for school year and summer transportation going forward. When it submitted
its bid, Hemet USD already provided transportation services for approximately 20
other school districts. Like the District’s drivers, Hemet USD’s drivers are public school
employees within the meaning of Government Code section 3540.1, subdivision (k). At
all relevant times, CSEA Chapter 104 has represented Hemet USD’s drivers.
The District finalized negotiations with Hemet USD in mid-June 2014, and the
two districts entered into an agreement for bus services effective August 6, 2014 (the
2014 Transportation Agreement). This agreement covered the District’s bus
transportation needs, for both summers and school years, through June 30, 2019.
3

When the District subcontracted its bus services and laid off its drivers in the
summer of 2014, it had no operative collective bargaining agreement (CBA) with
CSEA because the parties’ prior CBA had expired at the end of June 2010.
CSEA initiated this case on August 22, 2014, by filing an unfair practice charge
against the District. The charge primarily alleged that the District subcontracted its bus
services and laid off its drivers without affording CSEA adequate notice and an
opportunity to meet and negotiate, thereby violating EERA.
III. 	Liability Proceedings
PERB’s Office of the General Counsel (OGC) investigated the charge and
issued a complaint. The ALJ then held an evidentiary hearing and, after receiving
post-hearing briefs from the parties, issued a proposed decision in CSEA’s favor. The
District filed exceptions with the Board itself, challenging both the ALJ’s liability
determinations and the ALJ’s proposed remedy.
The Board resolved the District’s exceptions in Bellflower Unified School District
(2017) PERB Decision No. 2544 (Bellflower I). In holding that the District violated
EERA when it subcontracted work without meeting and negotiating in good faith, the
Board applied settled precedent to reach a critical conclusion: while the 2007-2010
CBA had permitted the District to subcontract if it provided CSEA with 45 days’ notice
and an opportunity to meet and consult in good faith before the District’s Board of
Education acted on a subcontracting proposal, that partial waiver of the right to full
4

bargaining was no longer effective once the CBA expired.2 (Id., adopting proposed
decision at pp. 27-31.) Thus, when the District subcontracted bus services in 2014,
that decision was subject to full bargaining rather than the more limited meet and
consult process in the expired CBA. (Id., adopting proposed decision at pp. 21-31.)
The Board’s remedial order included two directives that are no longer at issue:
requiring the District to post a notice and to provide CSEA with certain information.
(Bellflower I, supra, PERB Decision No. 2544, pp. 12, 14.) Beyond those two fully
satisfied requirements, Section A of the Board’s order required the District to cease
and desist from unilaterally implementing bargainable policies and interfering with
protected rights, while Section B of the Board’s order directed the District as follows:
“B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
“1. As soon as is practical, but not later than the end of the
school year in which this decision and order becomes final,
rescind its contract for bus driver services to transport
students to and from school during the regular school year.
“2. Upon completion of (B)(1), offer reinstatement to all bus
drivers laid off in or around June 27, 2014.
2 Specifically, Article XV, Section A of the expired CBA provided as follows:
“In the event that the District contemplates the contracting
out of work which has been performed by unit members,
and thereby adversely affecting the hours or continued
employment of current unit members, it shall give notice to
the Association and upon request meet and consult
regarding the decision and its effects, and give good faith
consideration to the Association’s objectives, if any. In the
absence of an emergency need, such notice shall be given
not less than 45 days prior to the Board action.”
(Bellflower I, supra, PERB Decision No. 2544, adopting proposed decision at p. 3.)
5

“3. Make whole for any financial losses suffered, including
wages, benefit[s] and extra hours wages, all laid off bus
drivers until they are either reinstated or refuse an offer of
reinstatement. These amounts should be augmented by
interest at a rate of 7 percent per annum.
“4. Remit to CSEA the sum equivalent of any dues or
agency fees that CSEA would have received if the District
did not unlawfully layoff its bus drivers until each laid off
bus driver is either reinstated or refuses an offer of
reinstatement. These amounts should be augmented by
interest at a rate of 7 percent per annum.
“5. As soon as is practical, rescind the private contract for
bus services to transport students to and from District
schools during the [ESY] and cease offering parents $25 to
transport their own students to and from school during the
[ESY].
“6. Upon completion of (B)(5), reinstitute the bidding
process used to assign [ESY] work to District bus drivers.
“7. Make whole for any financial losses any bus driver who
lost [ESY] bus driving work, during the 2014 [ESY] and
every subsequent [ESY], until the bidding assignment
process is reinstated. These amounts should be augmented
by interest at a rate of 7 percent per annum.
“8. Remit to CSEA the sum equivalent of any dues or
agency fees that CSEA would have received if the District
did not unilaterally assign [ESY] bus driver work to outside
sources, until it reinstitutes the [ESY] bidding assignment
process. These amounts should be augmented by interest
at a rate of 7 percent per annum.”
(Bellflower I, supra, PERB Decision No. 2544, pp. 12-14.)3
3 Neither Bellflower I nor this decision prevents the District from requiring
reinstated drivers to have any government-mandated certifications. However, a valid
reinstatement offer must include a reasonable timetable for acceptance (Los Gatos
Joint Union High School District (1980) PERB Decision No. 120, p. 4), including a
reasonable time for any necessary recertifications.
6

The District appealed Bellflower I by filing an extraordinary writ petition in the
California Court of Appeal. On July 9, 2018, the appellate court summarily denied the
District’s petition. The District did not seek any further judicial review of Bellflower I,
and its factual and legal conclusions are therefore no longer subject to dispute.
IV. 	The Parties’ 2014-2017 and 2017-2020 CBAs
While the parties were litigating the merits of CSEA’s charge, they reached two
new CBAs. First, the parties executed a CBA effective October 1, 2014, through
September 30, 2017. (Bellflower I, supra, PERB Decision No. 2544, adopting
proposed decision at p. 12.) The 2014-2017 CBA included the same subcontracting
provision as the 2007-2010 CBA (set forth above at footnote 2). The 2014-2017 CBA
also included three wage increases relevant to determining backpay: a 4 percent raise
(R1), retroactive to July 1, 2013; a 3 percent raise (R2), retroactive to July 1, 2014;
and a 3 percent raise (R3), effective July 1, 2015.
On or around June 28, 2018, the parties agreed to another CBA, with a term of
October 1, 2017, through June 30, 2020. The 2017-2020 CBA included a fourth wage
increase (R4), a 5.67 percent raise retroactive to January 1, 2018. The 2017-2020
CBA again included the same subcontracting provision found in the 2007-2010 CBA.
V. 	Initial Compliance Proceedings and the District’s Subsequent Contract with
Hemet USD
On August 28, 2018, OGC initiated compliance proceedings. The District filed
its initial compliance statement on October 22, 2018. In that letter, the District asserted
that it intended to allow its 2014 Transportation Agreement with Hemet USD to expire
by its own terms on June 30, 2019. The letter further stated:
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“Regarding the issue of reinstatement of bus drivers, the
order states they are not entitled to reinstatement until the
contract with Hemet is rescinded. Since the contract with
Hemet will end on June 30, 2019, there will be no
reinstatement offer until that date.”
Article XI of the 2014 Transportation Agreement, entitled “INVOLUNTARY OR
VOLUNTARY TERMINATION,” provided:
“A. 	Should a party to the Agreement refuse to abide by
the conditions of the Agreement or an approved
Amendment, then the Agreement may be involuntarily
terminated.
“B. 	Either District may withdraw from this Agreement at
the end of any fiscal year by notifying the other member,
District’s Superintendent or designee in writing before
December 31st of any fiscal year. [4]
“C. 	Involuntary termination shall be effective at the end
of the fiscal year, if possible or upon a minimum ninety (90)
days written notice.”
Delgado testified that either the District or Hemet USD could have terminated
the 2014 Transportation Agreement early with three to four months’ notice. Michael
Fogerty, Hemet USD’s Director of Transportation, also testified that either side could
have terminated the 2014 Transportation Agreement early with advance written notice.
However, neither the District nor Hemet USD took any steps to terminate the 2014
Transportation Agreement before its natural expiration date of June 30, 2019.
In response to OGC’s inquiries in compliance proceedings, the District made no
effort to establish that it had made any of the reimbursements to employees or to
4 Hemet USD, like the District, has a fiscal year that begins on July 1 and ends
on June 30.
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CSEA that the Board directed in paragraphs B.3, B.4, B.7, and B.8 of its order. The
District instead asserted that it had not received any demands for such payments,
even though the order required payment without any such demand.
On May 14, 2019, CSEA presented its initial calculations regarding backpay
owed to the 10 laid-off drivers. The District demanded records supporting CSEA’s
calculations for the drivers, including Form W-2 Wage and Tax Statements (Form
W-2s), Form 1099 Miscellaneous Income Statements (Form 1099s), and Form 1040
U.S. Individual Tax Returns (Form 1040s). CSEA subsequently furnished responsive
records to PERB and to the District.
On May 23, 2019, CSEA filed a copy of a letter from the District dated May 20,
2019, stating that the District was contemplating renewing its bus service contract with
Hemet USD on July 11, 2019. CSEA objected, contending that the District was
violating the Board’s remedial order. The District responded five days later, stating that
the 2017-2020 CBA permitted its renewed subcontracting.
After the 2014 Transportation Agreement expired on June 30, 2019, Hemet
USD continued to provide bus services to the District, including ESY bus services in
July 2019. Delgado executed a new one-year transportation agreement with Hemet
USD (the 2019 Transportation Agreement) on August 14, 2019, with a retroactive
effective date of July 1, 2019.
According to Delgado’s sworn declaration dated April 20, 2020:
“The District did enter into a further agreement with Hemet
commencing July 1, 2019 after giving timely notice to CSEA
as the District did in February 2014. This notice pursuant to
clear CBA language did not result in negotiations over the
issue because the union did not timely request a meet and
confer session.”
9

On July 8, 2019, OGC issued an administrative determination finding that the
District had not complied with the Board’s remedial order and that the District’s
conduct obstructed compliance with the order. The District timely appealed the
administrative determination to the Board itself.
The Board resolved the District’s appeal in Bellflower Unified School District
(2019) PERB Order No. Ad-475 (Bellflower II). The Board partially granted the appeal
and remanded the case to OGC for an expedited compliance hearing, repeatedly
noting that the District bears the burden of establishing its compliance with the Board’s
order. (Id. at pp. 2, 9, 14.) OGC transferred the matter to PERB’s Division of
Administrative Law to conduct the hearing and issue a proposed decision, pursuant to
PERB Regulation 32980, subdivisions (a) and (c).5 PERB’s Chief ALJ assigned the
matter to the same ALJ who issued the proposed decision as to liability.
Meanwhile, the District filed a request for reconsideration of Bellflower II. CSEA
opposed this request and moved for an attorney fee award for time spent responding
to the reconsideration request. On November 12, 2019, the Board issued Bellflower
Unified School District (2019) PERB Order No. Ad-475a (Bellflower III). The Board
denied the District’s request for reconsideration and ordered the District:
“to pay all reasonable attorney fees incurred by [CSEA]
related to the preparation and filing of its response to the
5 PERB Regulations are codified at California Code of Regulations, title 8,
sections 31001 et seq. PERB Regulation 32980, subdivision (a) provides, in relevant
part: “The General Counsel or his/her designate may conduct an inquiry, informal
conference, investigation, or hearing, as appropriate, concerning any compliance
matter.” PERB Regulation 32980, subdivision (c) provides: “If a proposed decision
based on a hearing is issued, the decision may be appealed to the Board itself
pursuant to Chapter 1, Subchapter 4, Article 2 of these regulations.”
10

request for reconsideration. CSEA is to prepare and submit
fee amounts to the assigned hearing officer. After the
conclusion of the hearing, the hearing officer shall prepare
a written order specifying the reasonable attorney fees and
shall serve that order on the parties, together with all other
proposed findings and conclusions necessary to determine
the District’s compliance in this matter, as described in
PERB Order No. Ad-475.”
(Id. at p. 6.)
VI. 	Further Compliance Proceedings, the Proposed Decision, and the Exceptions
At a pre-hearing conference on December 2, 2019, the parties scheduled the
compliance hearing for 10 days in April and May 2020. CSEA agreed to produce
declarations from the drivers detailing their financial losses and their post-layoff
employment. The parties agreed to admit these declarations into evidence as part of
the compliance record. CSEA similarly agreed to produce declarations supporting its
lost membership dues. The parties agreed that the District had the right to call any of
the declarants to testify about their declarations or any other relevant subject.
CSEA filed its declarations on February 9, 2020. The declarations included
attachments supporting the employees’ claimed losses. Many of the attachments were
the same, or of a similar nature, as the records CSEA provided during OGC’s earlier
compliance investigation.
During a second pre-hearing conference on February 19, 2020, the District
objected to CSEA’s declarations as “conditional” and lacking any final calculations of
lost wages. Considering the District’s objections, the ALJ declined to hold the District
to its earlier agreement to accept the declarations into evidence but directed the
District to file declarations from its planned witnesses, as a form of reciprocity for the
11

benefit the District received when CSEA provided pre-hearing declarations from its
witnesses. The District filed its witness declarations in April and May 2020.
Meanwhile, on March 4, 2020, Governor Gavin Newsom declared a state of
emergency in response to the COVID-19 pandemic. During a third pre-hearing
conference on March 16, 2020, the parties and the ALJ acknowledged that the
pandemic had disrupted their ability to conduct the compliance hearing in April and
May 2020. The ALJ rescheduled the hearing for June 2020 and established deadlines
for producing subpoenas and filing motions relating to subpoenas.
On March 19, 2020, Governor Newsom issued Executive Order N-33-20,
directing all residents in the State to stay at home, with limited exceptions.
On April 7, 2020, the ALJ directed the parties to file pre-hearing briefs listing
planned witnesses and identifying any anticipated subpoenas or evidentiary disputes.
Each party filed a pre-hearing brief on April 13, 2020.6
On May 6, 2020, the ALJ continued the hearing due to ongoing conditions
surrounding the pandemic.
When the 2019 Transportation Agreement expired on June 30, 2020, the
District and Hemet USD entered into another one-year agreement for fiscal year
6 In July 2020, CSEA filed a motion to enforce a subpoena against the District
for personnel records regarding the 10 laid-off drivers. The District responded that it
produced all responsive personnel records in its possession and that the remainder of
the documents were maintained by the Los Angeles County Office of Education
(LACOE), which administered the District’s payroll prior to July 1, 2016. The District
admitted it could request such prior payroll records from LACOE, but on July 29, 2020,
the District notified the ALJ that it did not intend to introduce any payroll documents
maintained by LACOE, because it did not consider those records to be relevant.
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2020-2021 (the 2020 Transportation Agreement). The record contains no evidence as
to whether the District provided CSEA with notice before entering into this agreement.
During a pre-hearing conference on July 27, 2020, the ALJ informed the parties
that the hearing could not take place at PERB’s Los Angeles Regional Office due to
pandemic restrictions. The ALJ also discussed specifications related to a virtual
hearing. The District objected to a virtual hearing, and the ALJ asked the parties to
state their positions in writing. After receiving the parties’ briefs on the issue, the ALJ
overruled the District’s objections and scheduled a virtual hearing.7
In December 2020, the ALJ held an eight-day hearing. At the hearing, the ALJ
informed the parties that he was required to determine compliance with all aspects of
the Board’s remedial order, absent a motion to the Board based on a settlement.
The parties filed their initial post-hearing briefs in April 2021. CSEA’s brief
included attachments explaining its calculations of employee losses. The District
objected to these attachments, claiming they were unauthenticated evidence. The ALJ
ruled that he would consider the attachments only to the extent they summarized or
analyzed evidence in the record. The ALJ stated that to the extent any attachment
asserted facts not supported by record evidence or any reasonable inference from
such evidence, he would reject such assertions. Over CSEA’s objection, the ALJ
granted the District’s request to extend the parties’ deadline for filing reply briefs.
The parties filed their reply briefs in May 2021, and the ALJ issued his proposed
decision a month later. The heart of the ALJ’s proposed order was his direction that
7 Neither party excepted to any of the ALJ’s pre-hearing rulings, and they
therefore are not before us.
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the District reinstate the laid-off employees with backpay (plus interest), as well as the
ALJ’s extensive calculations as to drivers’ projected income had they remained District
employees through December 31, 2020, and certain offsetting amounts that the ALJ
deducted from their losses. The ALJ also calculated proposed amounts the District
owes CSEA for lost dues (plus interest) and for attorney fees the Board ordered in
Bellflower III. The ALJ noted that he was calculating lost earnings, lost dues, and
interest only through December 31, 2020, and the parties would need to litigate
post- 2020 damages and interest at a later stage.
Both parties timely excepted to the proposed decision.8 While CSEA’s
exceptions largely comply with PERB Regulation 32300 by citing to the record on
factual issues, the District’s exceptions do not. The District has therefore waived
exceptions presenting factual issues. The District’s exceptions also largely fail to cite
any legal authority to support its legal arguments, as required by PERB Regulation
32300. Nonetheless, we have thoroughly analyzed the record and applicable law to
ensure our order is well-supported.
DISCUSSION
The District has the burden of proving its compliance with each part of the
Board’s order. (Bellflower II, supra, PERB Order No. Ad-475, p. 14.) Absent
extraordinary circumstances, the District cannot re-litigate any issue already resolved
8 In its exceptions, CSEA requests that we correct an error in paragraph 5 of
the ALJ’s proposed order, which mistakenly suggests that the District has offered to
reinstate the laid-off bus drivers. The balance of the sentence makes clear, however,
that this was an inadvertent mistake, as it describes why damages and interest
continue to accrue. There is no dispute that the District has not offered to reinstate any
drivers. Our order, which supersedes the ALJ’s proposed order, corrects this error.
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in a prior decision that is no longer subject to appeal. (City of Pasadena (2014) PERB
Order No. Ad-406-M, pp. 14, 16-17 (Pasadena).)
Compliance proceedings should generally not lead to protracted litigation and
should be commensurate to the scope of relief at issue. (Bellflower Unified School
District (2021) PERB Decision No. 2796, pp. 21-22.) In this case, even considering the
significant damages at stake and certain delays outside the parties’ control,
compliance proceedings have been overly protracted, compounding the District’s
obligations while depriving the drivers and CSEA of their owed relief. Further delay
helps no one, and we urge the parties to complete all litigation expeditiously.
Although the Board reviews exceptions to a proposed decision de novo, to the
extent an ALJ assesses credibility based upon observing a witness in the act of
testifying, we defer to such assessments unless the record warrants overturning them.
(County of Santa Clara (2019) PERB Decision No. 2629-M, pp. 8-9.) If a proposed
decision adequately addressed issues raised by certain exceptions, the Board need
not further analyze those exceptions. (Id. at p. 6.) The Board also need not address
alleged errors that have no material impact on the outcome. (Ibid.)
The proposed decision in this case adequately addressed most material issues,
though we supplement and adjust the ALJ’s analysis in several areas. In Part I below,
we address the District’s obligations to rescind its unilateral change, reinstate the
drivers, and cease and desist from unilaterally implementing policies within the scope
of representation. Like the ALJ, we find the District has unlawfully failed to comply with
these obligations. In Part II, we address overarching make-whole relief issues that
impact the damages and interest the District owes drivers and CSEA. In Part III, we
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address the District’s obligation to reimburse CSEA for lost dues. In Part IV, we
address the District’s obligations under the attorney fee order we issued as a sanction
in Bellflower III. Finally, in Part V, we explain the evidence and calculations underlying
our driver-specific make-whole relief.9
I. 	The District’s Recission, Reinstatement, and Cease-and-Desist Obligations
In Bellflower II, supra, PERB Order No. Ad-475, we remanded this case for an
expedited compliance hearing and noted the District would bear the burden of
establishing compliance with each part of the Board’s order. (Id. at pp. 2, 9, 14.) In its
two post-hearing briefs to the ALJ, the District scarcely addressed its obligations to
rescind its subcontracting arrangement, reinstate employees, and cease and desist
from further similar violations; instead, it focused on monetary relief issues. While the
District has therefore waived most arguments as to compliance with the recission,
reinstatement, and cease-and-desist orders, we nonetheless address those
compliance issues before turning to make-whole issues. For the following reasons, we
conclude the District has failed to comply with the recission, reinstatement, and cease-
and-desist orders.
A. The ALJ correctly concluded that it was practical for the District to stop
subcontracting and reinstate drivers during the 2018-2019 school year.
Section B.1 of the remedial order in Bellflower I, supra, PERB Decision
No. 2544 directed the District:
“As soon as is practical, but not later than the end of the
school year in which this decision and order becomes final,
9 We also correct some minor mathematical and typographical errors in the
calculations.
16

rescind its contract for bus driver services to transport
students to and from school during the regular school year.”
(Id. at p. 12.) Section B.2 directed that reinstatement should coincide with recission
under Section B.1. (Id. at p. 13.) Sections B.5 and B.6, in turn, required the District to
stop subcontracting ESY work and reinstitute its prior process for assigning such work
“[a]s soon as is practical.” (Ibid.)
The District has steadfastly misconstrued these obligations throughout
compliance proceedings. In its initial compliance statement of October 17, 2018, the
District argued that “June 30, 2019 is the date that the PERB order says that the
contract must be rescinded, but since it terminates pursuant to its own terms, no
action needs to be taken by the District.” The District simply ignored the critical first
five words in the operative paragraphs of our remedial order—“[a]s soon as is
practical.” By instead interpreting the Board’s remedial order to establish an opportune
deadline of June 30, 2019, the District rendered superfluous the key initial phrase and
gave an unlikely, strained meaning to its timing obligation.10
On October 26, 2018, OGC wrote to the parties that the District had failed to
provide any information showing whether the “expiration date is the earliest practical
date for the District to rescind the contract.” OGC pointed out the same problem with
respect to the District’s failure to stop subcontracting for ESY transportation services
under the 2014 Transportation Agreement. Nonetheless, the District maintained its
position and refused to provide OGC with any information about whether it was
10 Notably, the District did not stop subcontracting with Hemet USD or reinstate
the laid off drivers as of July 1, 2019.
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practical to rescind the 2014 Transportation Agreement before it naturally expired on
June 30, 2019. OGC’s administrative determination noted the District’s refusal to back
up its claim and correctly concluded that the Board’s order “does not state that ‘June
30, 2019 is the date that the PERB order says that the contract must be rescinded.’”
(Original italics.)
When the District appealed OGC’s administrative determination to the Board
itself, the District finally offered an explanation as to why it had allegedly not been
practical to rescind the 2014 Transportation Agreement prior to its natural expiration
date: “Unless Hemet were to consent to the recission, the District would need to file a
lawsuit against Hemet.” “Allowing the expiration per the terms of the contract,” the
District argued, “eliminated the potential for Hemet to successfully defend the District’s
required litigation for rescission, eliminated any potential damages against the District
for breach of contract, and eliminated the costs for the litigation that was a certainty.”
(Emphasis supplied.) The District did not support its claim that litigation was likely,
much less “required” and a “certainty.” Indeed, while the District qualified its entire
argument with the phrase “[u]nless Hemet were to consent to the recission . . .,” there
is no suggestion in the record that the District ever asked Hemet USD about ending
the agreement before its expiration date.
In resolving the District’s appeal by remanding for a compliance hearing, the
Board reminded the District of its burden by stating that “the District will have to
support its contention that it was not practical to rescind the unlawful contract before
its natural expiration with evidence.” (Bellflower II, supra, PERB Order No. Ad-475,
p. 12.) The District failed to do so. As noted above, two witnesses testified as to early
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recission: a high-level District official (Delgado) and a high-level Hemet USD official
(Fogerty). Both testified that the District had the ability to terminate the 2014
Transportation Agreement before its natural expiration date of June 30, 2019, based
on advance written notice. Delgado testified that the amount of required notice would
have been three or four months, thereby placing the practical recission date before the
2018-2019 winter break, given that the District stated it considered the Board’s
Bellflower I decision to have been final on July 9, 2018.
In its post-hearing briefs to the ALJ, the District did not address the practicality
of rescinding its subcontracting arrangement and reinstating drivers prior to June 30,
2019. The District thus waived any further argument as to rescission and
reinstatement during the 2018-2019 school year.
Despite the unequivocal evidence showing it was practical to rescind the
subcontracting agreement and reinstate drivers by winter break 2018-2019, and
notwithstanding the District’s waiver by failing to brief the question to the ALJ, the
District nonetheless returned to the practicality issue in its exceptions to the ALJ’s
proposed compliance decision, where it argued: “Logic in this case requires that the
impact on both students and bus drivers to terminate the contract early would be very
consequential.”
The District’s appeal to “logic” may ask us to infer drivers would have had to
relearn their routes mid-year. Or the District may be asking us to consider the impact
on the alternate set of drivers employed through Hemet USD. In any event, the District
failed to carry its burden to adduce sufficient competent evidence to show that earlier
recission and reinstatement dates were impractical. Consequently, even assuming for
19

the sake of argument that we were inclined to set aside the District’s waiver and
ignore that the District did not follow through on its promise to reinstate drivers when
the 2014 Transportation Agreement expired on July 1, 2019, the District’s failure to
establish impracticality through competent evidence would prevent us from finding in
the District’s favor.
B. The 2019 Transportation Agreement violated the cease-and-desist order
and did not alter the District’s compliance obligations.
In its opening post-hearing brief, CSEA anticipated that “the District will likely
argue” that even if it violated the Board’s remedial order initially, it eventually had no
further duties under the order because it entered into the 2019 Transportation
Agreement pursuant to the parties’ 2017-2020 CBA. The District responded to this
point in its reply brief, as follows:
“As conceded by CSEA in its Opening Brief, the District had
the right to subcontract out transportation services in the
CBA in effect at the time of the expiration of the 2014
Hemet Agreement, so the District had a right to terminate
the bus drivers under the new CBA. (See, CSEA’s Opening
Brief at Page 64.) The District does make the anticipated
argument and would urge Judge Cu to consider that the
effect of the deemed layoff ended no later than June 30,
2019.”
In addition to wrongly claiming CSEA conceded the point, the District did not analyze
the law or the facts and therefore waived any argument based on the 2019
Transportation Agreement.
Notwithstanding the District’s waiver, the law and the facts do not support the
District’s argument. As noted above, the parties’ 2017-2020 CBA included the
following subcontracting language:
20

“In the event that the District contemplates the contracting
out of work which has been performed by unit members,
and thereby adversely affecting the hours or continued
employment of current unit members, it shall give notice to
the Association and upon request meet and consult
regarding the decision and its effects, and give good faith
consideration to the Association’s objectives, if any. In the
absence of an emergency need, such notice shall be given
not less than 45 days prior to the Board action.”
We begin by assessing to what extent this language waived any of the District’s
compliance duties or CSEA’s right to bargain. A waiver of a statutory right must be
clear and unmistakable. (County of Merced (2020) PERB Decision No. 2740-M, p. 19
(Merced), citing Los Angeles Unified School District (2017) PERB Decision No. 2518,
p. 39.) The 2017-2020 CBA could not have directly waived the District’s duty to
comply with Bellflower I. Its only potential relevance is that it authorized the District to
subcontract CSEA bargaining unit work if and only if the District notified CSEA at least
45 days in advance of a proposed District Board of Education decision to subcontract
and then met and consulted with CSEA in good faith upon request.
As a threshold matter, CSEA could not meet and consult with the District in
good faith, both because the District unlawfully refused to restore the status quo by
rescinding its subcontract during the 2018-2019 school year and because it took no
steps to restore the status quo as of July 1, 2019. (See, e.g., Merced, supra, PERB
Decision No. 2740-M, pp. 21-23 [failing to rescind a unilateral change creates a one-
sided advantage for the employer and forces the union to negotiate back to a status
quo that should already be in place].) The District’s renewed subcontracting could not
comply with the terms of the CBA without prior restoration of the status quo.
21

Furthermore, the District first informed CSEA of its plan to re-subcontract with
Hemet USD by letter dated May 20, 2019. According to that letter, the District planned
to seek the Board of Education’s approval at a public meeting on July 11, 2019. But
while the District provided over 45 days’ notice of potential Board action on July 11,
the District’s letter dated May 20 did not provide 45 days’ notice of renewed
subcontracting that was immediately effective on July 1, 2019. Rather than reinstate
drivers on July 1 and follow its seniority bidding process for ESY work that month, the
District simply continued to subcontract with Hemet USD. The District did so despite
its representations to OGC and CSEA that it would reinstate drivers when the 2014
Transportation Agreement expired on June 30, and despite its later representation that
the Board of Education would consider any renewed subcontracting at a public
meeting on July 11, 2019. There is no dispute that when the District continued
subcontracting with Hemet USD for bus service on July 1, 2019, this was less than 45
days from May 20.11 These facts constitute additional reasons that the District’s
decision to continue using Hemet USD for bus services effective July 1, 2019, violated
Article XV of the CBA and the Board’s order.12
11 The District claims the ALJ showed bias in CSEA’s favor when he considered
whether the District gave CSEA proper notice of the decision to continue
subcontracting. We disagree. As noted ante, the District made only an indirect
argument that the CBA and the 2019 Transportation Agreement altered its compliance
obligations. The ALJ need not have considered this waived argument. But once he did
so, he had no choice but to consider whether the District had satisfied the CBA’s
45-day notice requirement. The ALJ’s consideration of the notice issue thus does not
indicate bias.
12 In addition to failing to comply with the contractual notice requirement before
once again subcontracting CSEA bargaining unit work, the District did not notify CSEA
22

The District’s hearing exhibits include a declaration from Delgado stating, in
part, that the District gave “timely notice” to CSEA about its plans to renew its
transportation agreement with Hemet USD in 2019, but that such notice “did not result
in negotiations over the issue because [CSEA] did not timely request a meet and
confer session.” We agree with the ALJ that Delgado’s declaration carries little weight,
as Delgado did not explain in his declaration or testimony what he considered to be
“timely notice” or a “timely request” to meet and consult. In any event, as discussed
above, Delgado’s testimony conflicts with the fact that the May 20 letter, by its terms,
could not provide CSEA with the requisite 45-day notice of an action effective July 1,
2019, and there was no opportunity to meet and consult in good faith given the
District’s still-unremedied unfair practice violations. (Merced, supra, PERB Decision
No. 2740-M, p. 23.)
Since the District made it impossible to meet and consult in good faith and
violated the CBA by failing to provide 45 days’ notice, the District cannot rely on its
2019 Transportation Agreement to cut short any of its compliance obligations. (See
Merced, supra, PERB Decision No. 2740-M, pp. 21-23 [where employer implemented
change after close of PERB formal hearing and argued that change cut off its duty to
make employees whole and restore the status quo, Board rejected employer argument
because employer had never restored status quo before implementing change].)
Indeed, far from cutting off the District’s recission, reinstatement, and make-whole
obligations, the District’s renewed subcontracting violated our order that the District
that, contrary to its prior written representation, it had changed its plan and would not
reinstate the drivers on July 1, 2019.
23

cease and desist from unilaterally implementing bargainable policies, interfering with
employees’ protected rights, and interfering with CSEA’s protected rights. (Bellflower I,
supra, PERB Decision No. 2544, p. 12.)
For these reasons, we affirm the ALJ’s conclusion that the 2017-2020 CBA and
2019 Transportation Agreement did not immunize the District from complying with our
order in Bellflower I. Additionally, we find the District violated our cease-and-desist
order by subcontracting bus driver work in a manner that did not comport with the
limited waiver in the 2017-2020 CBA. A cease-and-desist order draws its meaning
from the specific violation found in the context of the entire decision. (William S. Hart
Union High School District (2018) PERB Decision No. 2595, p. 13.) In Bellflower I, we
noted that subcontracting unit work is a mandatory subject of bargaining, and the
District therefore cannot unilaterally subcontract without an adequate defense. Thus,
the Board’s cease-and-desist order disallows the renewed subcontracting, which the
District similarly undertook without an adequate defense.
C. The 2020 Transportation Agreement violated the cease-and-desist order
and did not alter the District’s compliance obligations.
While the 2019 Transportation Agreement lasted only through June 30, 2020,
the District and Hemet USD entered into another one-year agreement effective July 1,
2020. As of that date, the 2017-2020 CBA had expired, meaning the partial waiver
found in Article XV had also expired. (Bellflower I, supra, PERB Decision No. 2544,
p. 27.) Even were that not the case, the record contains little evidence concerning the
2020 Transportation Agreement and certainly no evidence that the District complied
with Article XV. For instance, the District’s failure to remediate the outstanding unfair
practices precluded CSEA from engaging in a good faith meet and consult process.
24

Moreover, the record does not show that the District provided CSEA with any notice,
much less 45 days’ notice, regarding potential Board of Education approval of the
2020 Transportation Agreement. The 2020 Agreement therefore further violated our
cease-and-desist order and, in any event, did not alter the District’s compliance
obligations.
D. The District violated its obligations regarding ESY bus services.
Sections B.5 and B.6 of our order in Bellflower I, which apply to ESY program
transportation services, are akin to Sections B.1 and B.2 in that they required the
District to stop subcontracting ESY work and reinstitute its prior process for assigning
such work “as soon as practical.” Section B.5 also required the District to cease
offering families $25 per day to transport students to and from the ESY program.
The record provides no evidence that the District has complied with these
requirements. Indeed, while the District used American Logistics to provide bus
service during the 2014 ESY, thereafter the District folded ESY transportation services
into its subcontracting arrangement with Hemet USD. Because the District failed to
rescind the 2014 Transportation Agreement and resume using its own drivers as soon
as practical after Bellflower I became final, the same is true for ESY work. Nor is there
any evidence that the District has ceased offering families $25 per day to transport
students to and from the ESY program.
For the foregoing reasons, the District has failed to demonstrate that it complied
with its recission, reinstatement, and cease-and-desist obligations.
II. 	The District’s Make-Whole Relief Obligations
A “finding by the Board that an unfair labor practice was committed is
presumptive proof that at least some backpay is owed.” (Bellflower II, supra, PERB
25

Order No. Ad-475, p. 10.) Notwithstanding this presumption, in compliance
proceedings the charging party bears the burden of proving damages caused by the
respondent’s unfair practice(s). (Regents of the University of California (2021) PERB
Decision No. 2755-H, p. 56.) The charging party, however, need not prove damages
with precision. Rather, make-whole relief usually involves predictions and estimates,
and thus an approximation of actual damages may be sufficient to meet the charging
party’s burden. (Pasadena, supra, PERB Order No. Ad-406-M, p. 14.) We resolve
uncertainties as to the amount owed against the wrongdoer. (Id. at p. 27; City of
Culver City (2020) PERB Decision No. 2731-M, p. 26.) Moreover, provided that an
estimate has a rational basis, and is not so excessive as to be punitive, it appropriately
serves both a compensatory and deterrent function. (Pasadena, supra, PERB Order
No. Ad-406-M, p. 13.)
Make-whole relief should expunge the consequences of an unfair practice and
restore “the economic status quo that would have obtained but for the respondent’s
wrongful act.” (County of Kern and Kern County Hospital Authority (2019) PERB
Decision No. 2659-M, p. 26; Pasadena, supra, PERB Order No. Ad-406-M, p. 13.) Our
task is therefore to “recreate the conditions and relationships that would have been
had there been no unfair labor practice, even when doing so necessarily entails some
degree of uncertainty as to the precise relationships.” (Pasadena, supra, PERB Order
No. Ad-406-M, p. 13.)
Parts III and IV of this decision explain the District’s monetary obligations to
CSEA, while Part V explains the District’s monetary obligations to the drivers. First,
however, in this Part II, we address five overarching make-whole relief issues.
26

A. The Compliance Record
The District has consistently declined to offer alternate damages-related
evidence or calculations of its own, instead mounting broad attacks on the adequacy
of the record. First, the District has objected to using Form W-2s, Form 1040s, and
other wage and income records as evidence of employee losses, mitigation efforts,
and interim earnings, arguing that those records are inaccurate and incomplete. For
the following reasons, we disagree.
CSEA furnished much of its evidence during OGC’s initial investigation. In
Bellflower II, supra, PERB Order No. Ad-475, we held that such records are typically
sufficient, and we further noted that the District was free to introduce evidence
showing inaccuracies or gaps in such records. (Id. at p. 12.) CSEA updated the
evidence through pre-hearing declarations from each driver. The District had the
opportunity to produce evidence and argument as to how or why such records were
inaccurate, unreliable, or might yield unreasonable results. But the District declined to
subpoena additional records or otherwise seek to introduce impeachment evidence or
supplemental records. As the ALJ noted, the District made this decision even though it
knew what records CSEA intended to present and that such records were sufficient
absent any contrary evidence. In fact, as noted above at footnote 6, the District even
declined to investigate its own payroll records that an outside agency administered.
Instead, the District stated that it did not consider such records to be relevant.
While declining to subpoena or introduce relevant evidence, the District
nonetheless argued to the ALJ that certain Form W-2s were inaccurate or incomplete.
For instance, the District argued that the 2014 Form W-2s for M.G. and E.Q.
27

showed income totals that differ from the year-to-date gross wages listed on their
District paychecks dated July 10, 2014. The ALJ reasonably noted that it was unclear
whether these paychecks were the last ones M.G. and E.Q. received from the District,
and that subsequent amendments or final paychecks may have resolved any
discrepancies. Furthermore, the drivers testified that the records upon which the ALJ
relied accurately showed their District wages. In contrast, no witnesses testified that
employees’ final 2014 wage totals could best be determined from their paychecks
dated July 10, 2014. Indeed, the District neither asked employees that question nor
called any other witness to testify about employee pay. The ALJ, noting that the Form
W-2s and paychecks are District records, and the District had many opportunities to
clarify discrepancies or otherwise introduce competent evidence, reasonably relied on
the well-supported, largely unrebutted records CSEA introduced into evidence.
Second, the District asked the ALJ to find fault with the fact that CSEA’s closing
brief adjusted CSEA’s initial calculations. As part of this adjustment, CSEA essentially
acknowledged that its first attempt had wrongly assumed drivers worked 12 months
per year.13 The ALJ correctly found that this change in calculations drew new
conclusions from the compliance record but did not constitute new evidence, and the
13 CSEA changed its approach as follows: while initially it assumed drivers
would have worked 12 months per year, its revised calculations were based on drivers
having worked 11 months per year. In this new approach, CSEA assumed each driver
worked, on average, 10 months during the school year plus a full month during the
ESY program. The ALJ rejected this assumption and instead based his calculation on
10.5 months of work, with each driver working an average of 0.5 months during the
ESY program. CSEA does not challenge the ALJ’s ruling on this issue. CSEA changed
its approach in a second respect, as well: while CSEA initially calculated compound
interest, it later switched to simple interest.
28

ALJ granted the District’s request for additional time to file its reply brief given that
CSEA had changed its calculations. It is frivolous for the District to suggest that the
compliance record is inadequate merely because CSEA calculated new estimated
damages without seeking to introduce new evidence, particularly given that the District
has refused to attempt its own calculations. In any event, like the ALJ, we perform our
own calculations, which differ from CSEA’s.
B. The Duty to Mitigate Damages
While PERB affords unlawfully terminated employees a reasonable amount of
time to collect themselves and recover from the initial shock of their termination, after
that period elapses they have a duty to mitigate losses by taking steps consistent with
the inclination to find new work and be self-supporting. (County of Lassen (2018)
PERB Decision No. 2612-M, pp. 8-9 (Lassen).) A respondent that violated the law has
the burden of establishing that an employee did not make a good faith effort to
mitigate damages. (Id. at p. 8.) First, the respondent must show that: “(1) a number of
positions were available that are substantially equivalent to the one previously held by
the claimant; (2) the claimant would have qualified for one of these positions; and
(3) the claimant did not apply for these positions.” (Fresno County Office of Education
(1996) PERB Decision No. 1171, adopting proposed decision at p. 4 (Fresno).)
If the respondent establishes each of these elements, the employee may still
satisfy the duty to mitigate by showing other reasonable efforts. (Id., adopting
proposed decision at pp. 4-5; NLRB v. KSM Industries, Inc. (7th Cir. 2012) 682 F.3d
537, 547 [once burden shifts to employee to show reasonable efforts, employee can
satisfy that burden via testimony or other reliable evidence of good faith job hunting
29

efforts].)14 As with other issues causing uncertainty in the amount of damages owed,
we resolve uncertainty about mitigation against the wrongdoer. (Bellflower II, supra,
PERB Order No. Ad-475, p. 10; Pasadena, supra, PERB Order No. Ad-406-M, p. 27.)
The duty to mitigate damages is not a difficult hurdle. (Bellflower II, supra,
PERB Order No. Ad-475, p. 10.) Efforts to mitigate damages need not be successful;
employees must only undertake them in good faith. (Lassen, supra, PERB Decision
No. 2612-M, p. 9.) Moreover, an employee who pursues an educational opportunity
satisfies the duty to mitigate by combining school with job hunting or by reasonably
deciding that additional education is the best path toward gainful employment. (Id. at
p. 10.) Self-employment also satisfies the duty to mitigate. (County of Riverside (2013)
PERB Decision No. 2336-M, adopting proposed decision at p. 19 (Riverside).)15
The ALJ, relying on private sector authorities, correctly determined that
applying for or receiving retirement benefits does not mean an employee has left the
workforce, so long as the employee is otherwise attempting to mitigate losses and
willing to return to work. (NLRB v. KSM Industries, supra, 682 F.3d at p. 545; Roman
14 Although California public sector labor relations precedent frequently protects
employee and union rights to a greater degree than does federal precedent governing
private sector labor relations, we consider federal precedent for its potential
persuasive value. (Operating Engineers Local Union No. 3, AFL-CIO (Wagner, et al.)
(2021) PERB Decision No. 2782-M, p. 9, fn. 10.)
15 We also affirm the ALJ’s legal conclusion that employees need not seek work
that is more onerous than their prior employment, need not confine themselves to
looking for jobs earning the same level of compensation as they had previously
earned, and need not remain in the same industry. Rather, as noted above,
employees must show an inclination to be self-supporting. (Lassen, supra, PERB
Decision No. 2612-M, p. 9.)
30

Iron Works (1989) 292 NLRB 1292, fn. 3; National Labor Relations Board (NLRB)
Casehandling Manual (Part 3) Compliance Proceedings (October 2020), § 10560.9
(NLRB Compliance Manual).) Indeed, as this case and others aptly demonstrate, an
employee may experience severe economic stress after a wrongful layoff or
termination. Here, multiple employees had to tap retirement benefits to make ends
meet. This did not, by itself, reflect a decision to stop working. Nonetheless, if an
employee who begins drawing retirement income also stops mitigation efforts, the
latter decision appropriately affects the employee’s backpay award going forward.
Each driver also applied for unemployment benefits and received such benefits
from California’s Employment Development Department (EDD). The ALJ, relying on
private sector authorities, correctly concluded that while unemployment benefits are
not interim earnings that offset employee damages, receipt of such benefits is at least
relevant evidence on the issue of efforts to mitigate. (NLRB Compliance Manual,
supra, § 10554.1; NLRB v. Gullett Gin Co. (1951) 340 U.S. 361, 364 [unemployment
benefits reflect a “policy of social betterment,” and it effectuates labor policy to refrain
from giving a wrongdoer an offset based on collateral benefits]; NLRB v. KSM
Industries, supra, 682 F.3d at p. 548 [complying with job search requirements to
receive unemployment benefits is prima facie evidence of a reasonable search for
interim employment].) As the ALJ noted and the record in this case reflects, to receive
benefits, unemployment applicants must apply for new jobs or engage in a reasonable
education or training program.
The District argues that the drivers should receive no backpay because they
allegedly failed to mitigate damages. We disagree. In Bellflower II, supra, PERB Order
31

No. Ad-475, we held that during OGC’s initial compliance proceedings, CSEA
produced records showing that all drivers searched for and obtained interim
employment within a reasonable time after their layoffs. (Id. at p. 11.) The compliance
record further supports that finding, and we affirm the ALJ’s conclusion that the drivers
thereafter continued efforts to mitigate the damages, as summarized in Part V.
The District primarily argues that to comply with the duty to mitigate damages,
the drivers had to apply to work at Hemet USD, but only two did so. Specifically, E.V.
successfully applied, while Hemet USD did not process D.C.’s application because
she did not submit a résumé. The District also points to evidence that Whittier Union
High School District (where M.G. had earlier tried and failed to obtain a job) was hiring
bus drivers in 2018, as well as uncorroborated hearsay as to job openings at three
other employers.
Under Fresno, supra, PERB Decision No. 1171, mitigation analysis has more
facets than the District acknowledges. Indeed, even if the District could show that
Hemet USD or another employer more likely than not would have hired the drivers had
they applied, the law and the record support the ALJ’s finding that drivers nonetheless
satisfied their duty to mitigate damages by showing other reasonable mitigation
efforts. (Id., adopting proposed decision at pp. 4-5.) The ALJ, relying in part on section
10558.3 of the NLRB Compliance Manual, correctly noted that resolving whether an
employee made reasonable efforts does not turn on any single category of potential
job applications, much less any one application. (Id. [“The presence or absence of any
particular search activity does not determine mitigation”].) Based on the drivers’
extensive mitigation efforts detailed in Part V, we affirm the ALJ’s conclusion that they
32

made reasonable efforts during all periods in which they claimed losses, other than
E.V. during the last four months of 2020.16
C. Methods for Calculating Drivers’ Net Losses
1. 	Wages
To estimate net lost wages (before interest), it is proper to project the annual
wages a driver would have received if still working for the District, and then to subtract
wages earned from alternative jobs the driver could not have held while employed with
the District. If an employee’s offsetting wages equal or exceed the driver’s projected
District wages in any year, then the employee’s net lost wages for that year are zero.
The ALJ, relying in part on sections 10552.4 and 10564.3 of the NLRB Compliance
Manual, correctly determined that excess offset income from one year neither offsets
losses in a different year nor offsets benefits-related losses.
2. 	Medical Benefits
If an employee must pay more for medical, dental, and/or vision insurance, then
PERB will calculate the difference either on an annual basis or across any reasonable
timeframe. If an employee has no access to one or more types of health insurance
16 The ALJ found that E.V. stopped all mitigation efforts effective September 1,
2020, when she retired from Hemet USD. The ALJ also found that M.G. claimed no
losses for 2020 and the last two months of 2019, while N.H. claimed no losses for
2019 and 2020. CSEA did not except to those findings, and we therefore express no
opinion on them. Nonetheless, these findings do not alter the standards that will apply
to any losses they claim for periods after 2020. Such claims may or may not be valid,
depending on what the evidence shows. Similarly, and particularly given that “back
pay and reinstatement are two separate remedies” (Riverside, supra, PERB Decision
No. 2336-M, p. 16), E.V., N.H., and M.G. have not waived reinstatement. Upon receipt
of reinstatement offers, they may—like the other drivers—decide if they wish to
resume working for the District.
33

offered previously, or the employee declines higher cost insurance available through
an interim employer or otherwise, the employee may instead seek reimbursement for
out-of-pocket costs of uncovered care. At times, it is proper to use a combination of
methods. This can be the case, for instance, if an employee pays a higher monthly
premium but ends up with inferior insurance and therefore must pay higher copays or
incurs uncovered care that the employee’s prior insurance had covered. A
combination of methods may also be appropriate if the employee obtains coverage for
incomplete periods of time, a subset of previously covered family members, or a
subset of previously covered types of care.
3. 	Retirement Benefits
Losses related to post-employment benefits are also compensable. (Contra
Costa County Fire Protection District (2019) PERB Decision No. 2632-M, p. 58; City of
San Diego (2015) PERB Decision No. 2464-M, p. 45, affirmed sub nom. Boling v.
Public Employment Relations Bd. (2018) 5 Cal.5th 898, 920 (San Diego).) Here,
because CSEA has claimed neither retiree health benefit losses nor defined
contribution plan losses, we do not analyze potential methods for estimating such
losses.17 Instead, we assess CSEA’s claim that four drivers suffered losses related to
the California Public Employees Retirement System (CalPERS) defined benefit plan.
Making employees whole for defined benefit losses normally requires an
offending employer to remit contributions to the pension plan to ensure that the
17 In each instance in which we note that CSEA has not claimed a category of
damages for one or more drivers, we mean only through December 31, 2020. We do
not predict what damages drivers may have incurred, nor limit what damages drivers
may wish to seek, for dates after December 31, 2020.
34

employees receive service credit for the backpay period, thereby placing them in the
same situation as if the unfair practice had not occurred. (See, e.g., City of Glendale
(2020) PERB Decision No. 2694-M, p. 74; Gov. Code, § 20969.3.)18 Any interest owed
to the pension plan, on either party’s contributions, is the employer’s responsibility.
(City of Glendale, supra, PERB Decision No. 2694-M, p. 74.) Such arrangements may
become more complicated if an employee began withdrawing retirement benefits
during the backpay period. Such an employee can choose to “unretire” (which may
involve paying back distributions already received, with the goal of a more valuable
retirement benefit later) or to choose an alternate means of estimating retirement
benefit losses. (Id. at p. 73; Gov. Code, § 21198.)
Here, CSEA claimed retirement-related losses for only four drivers and did not
seek to recover lost CalPERS service credit even for these four drivers.19 At CSEA’s
request, the ALJ employed an alternative means to calculate retirement losses.
Specifically, the ALJ directed the District to pay the four drivers the dollar amounts the
District would have contributed to the defined benefit pension plan on their behalf (less
any contributions they received from an interim employer), plus interest. The drivers
thereby receive no back service credit but gain a cash payment instead. This
18 Government Code section 20969.3, which applies to terminations occurring
on or after January 1, 2017, requires CalPERS to restore service credit to reinstated
employees upon receipt of contributions. In November 2017, the CalPERS Board
issued a precedential decision finding that even under prior law it was proper to
restore service credit to reinstated employees upon receipt of contributions. (Matter of
Kareemah M. Bradford (2017) CalPERS Board Decision No. 17-01.)
19 Nothing herein limits any driver’s independent right to purchase service credit
directly from CalPERS.
35

approach may fall short of making employees whole, particularly given that individual
investment decisions do not necessarily match the efficiency of a defined benefit plan
in supplying retirement income. (See, e.g., William Fornia & Dan Donnan, A Better
Bang for the Buck 3.0 (National Institute on Retirement Security, 2022)
https://www.nirsonline.org/wp-content/uploads/2022/01/Better-Bang-for-the-Buck-3.0-
F11.pdf, last accessed Mar. 18, 2022 [defined benefit plans, on average, supply a
higher level of retirement income than defined contribution plans, assuming an equal
level of contributions].)20 Nonetheless, the ALJ’s approach was not reversible error in
these circumstances because charging party advocated for it.
However, we reverse the ALJ’s decision to offset against four drivers’ lost
wages the CalPERS pension distributions they began receiving during the backpay
period, as the drivers had earned this deferred compensation entirely during their
pre-layoff work for the District. (See Miller v. State of California (1977) 18 Cal.3d 808,
814 [pensions “are deferred compensation earned immediately upon the performance of
services”].) We explain.
The ALJ found that pension distributions received during the backpay period
offset an employee’s net backpay award. But that is true only if an employee earned
20 This publicly available research report helps to illustrate why service credit is
the preferred make-whole remedy, but it does not constitute record evidence as to any
issue in dispute. (County of Santa Clara, supra, PERB Decision No. 2629-M, p. 6,
fn. 5.) While merely directing an employer to pay employees lost employer
contributions does not necessarily make employees whole, an alternative that more
closely approximates service credit would be a payment based on expert actuarial
analysis calculating “the value of lost pension benefits” less the value of any
alternative benefit earned. (San Diego, supra, PERB Decision No. 2464-M, p. 45.)
36

the pension via work during the backpay period. The ALJ misconstrued United Enviro
Systems, Inc. (1997) 323 NLRB 83, which held that “proper deductions from net
backpay [include] distributions from an interim employer’s pension plan that [an
employee], on termination of that interim employment, has the option of either
receiving directly in cash or rolling over into a [tax-deferred retirement] plan.” (Id. at
p. 84.) The NLRB therefore reduced an employee’s backpay by the $2,400 distribution
he received from his interim employer’s pension plan. (Ibid.) Thus, United Enviro
Systems, Inc. held only that retirement income from an interim employer earned
during the backpay period offsets losses. In contrast, the NLRB does not treat
deferred compensation earned before the backpay period as an offset against
earnings lost during the backpay period. (Id. at p. 84; Reliable Electric Company
(2000) 330 NLRB 714, 726; NLRB Compliance Manual, §§ 10544.3, 10552.4.)
PERB precedent is in accord. In Fresno, supra, PERB Decision No. 1171, a
laid-off teacher began receiving pension distributions during the backpay period. (Id.,
adopting proposed decision at p. 8, fn. 9.) The teacher also searched for work, albeit
unsuccessfully. (Id., adopting proposed decision at pp. 8-9.) The Board held that she
made sufficient mitigation efforts (id., adopting proposed decision at p. 9) and that her
pension distributions, which she had earned before her layoff, did not offset lost
earnings during the backpay period (id., adopting proposed decision at p. 8, fn. 9). We
reaffirm that Fresno established the correct approach.
At the parties’ request, we have reviewed precedent arising under federal anti-
discrimination statutes. These decisions fall into two main categories, one of which
supports our approach and one of which does not. However, we find neither category
37

A contrary rule would exacerbate employee losses. After termination, an
employee may be hard-pressed to make ends meet and may therefore begin drawing
retirement benefits earlier than planned. (Fresno, supra, PERB Decision No. 1171,
adopting proposed decision at pp. 8-9.) An employee may also have little choice but to
retire early to make use of earned retiree health benefits. (See, e.g., CalPERS State
Health Benefits Guide, pp. 22, 87, 89 & 103 [https://www.calpers.ca.gov/docs/forms-
publications/state-health-guide.pdf] last accessed Mar. 18, 2022 [to be eligible for
CalPERS retiree health benefits, employee must retire within 120 days of
separation].)21 Early retirement typically decreases the value of an employee’s
persuasive. There is no need to analogize to income sources such as unemployment
insurance, as multiple federal decisions do. Rather, previously earned deferred
compensation stands in stark contrast because there is no question as to when an
employee earned it or what purpose it serves. The drivers earned 100 percent of the
deferred compensation at issue as compensation for their pre-layoff work on behalf of
the District. The drivers’ entitlement to it existed prior to, and independent of, their
layoffs. Thus, to treat such compensation as an offset against losses during the
backpay period is no more supportable than treating drivers’ pre-layoff wages as an
offset; to do so contravenes the entire purpose of make-whole relief.
21 Publications issued by a state agency are subject to administrative notice.
(State of California (2011) PERB Decision No. 2178-S, p. 3.) While taking
administrative notice is not equivalent to accepting the truth of all statements in the
publication (Merced, supra, PERB Decision No. 2740-M, p. 7, fn. 5), here no holding
turns on the publication’s truth. Moreover, irrespective of the publication’s accuracy, it
tends to influence laid-off employees to consider retiring for CalPERS purposes within
120 days of their separation from employment.
38

pension benefit. This is true because of the age factor in most pension formulas, as
well as because an employee retiring early has less service credit and often a lower
salary factor than if the employee had remained employed. The approach reflected in
the ALJ’s proposed decision, far from remedying this loss, would exacerbate the loss
by fictitiously treating deferred compensation as if it were instead new income from
alternative work.22
In sum, previously earned retirement benefits are not alternative income earned
from work during the backpay period. Accordingly, in Part V we correct the ALJ’s error
for the four drivers who, while continuing to work during the backpay period, began
drawing retirement benefits earned during their years working for the District.
4. 	Consequential Damages, Including Search-for-Work Expenses and Interim
Employment Expenses
The NLRB recently noted that for more than 80 years, it “has awarded two
remedies as part of its make-whole relief that may be characterized as consequential
damages, specifically reasonable search-for-work and interim employment expenses.”
(Thryv, Inc. (2021) 371 NLRB No. 37, p. 1.) The NLRB summarized these principles
as part of its order inviting parties and interested amici to brief five specified questions
concerning whether the NLRB should begin directing respondents to reimburse
additional categories of consequential damages that are a direct and foreseeable
22 Drawing retirement benefits does not, however, count as mitigation efforts.
Thus, to the extent an employee who begins drawing retirement income also stops
mitigation efforts, the latter decision affects the employee’s backpay award going
forward. If the employee instead draws retirement benefits while continuing to work or
seek employment, then there is no windfall in allowing the employee to keep drawing
deferred compensation fully earned before the respondent’s wrongdoing while also
receiving reimbursement for income lost during the backpay period.
39

result of the respondent’s violation. (Id. at pp. 1-2.) Here, CSEA has not asked to
recover search-for-work expenses. CSEA also has not asked for any of the potentially
broad consequential damages that parties and amici have addressed in their briefs to
the NLRB in Thryv, Inc., supra, 371 NLRB No. 37. (See https://www.nlrb.gov/case/20-
CA-251105.) We therefore have no cause in this case to reconsider PERB precedent
on most aspects of consequential damages.
The ALJ, however, did address interim employment expenses for those drivers
who worked as independent contractors during the backpay period. Specifically, the
ALJ subtracted such expenses from interim employment income to find a net income
amount that the ALJ then offset against lost pay. This method was consistent with
NLRB practice prior to 2016, as well as with Otay Water District (2004) PERB Decision
No. 1634-M. (See id., adopting proposed decision at p. 9 [“This mitigation may in turn
be reduced by any necessary and reasonable expenses incurred by the discriminatee
in searching for and obtaining interim employment, e.g., transportation and moving
expenses, expenses commuting to the new job”].) It is not, however, consistent with
current NLRB practice. In King Soopers, Inc. (2016) 364 NLRB 1153, the NLRB held
that interim employment expenses are recoverable in full and do not offset interim
employment earnings for purposes of calculating net backpay. (Id. at pp. 1157-1158.)
The NLRB noted that in many cases its prior practice resulted in employees not
recouping the full amount of their interim expenses. (Id. at p. 1157.) And when interim
expenses exceeded interim earnings, the employee would recoup none of the
expenses. (Ibid.) By awarding such expenses (with interest) separately from backpay,
the NLRB aligned its treatment of interim employment expenses with how it treats
40

other expenses, including medical expenses, thereby ensuring that all expenses
resulting from the respondent’s unlawful conduct are fully recoverable. (Id. at
pp. 1157-1158.)
Although the ALJ applied the method rejected in King Soopers, Inc., supra, 364
NLRB 1153, CSEA did not except to this approach, and we therefore do not disturb it
for damages calculations through December 31, 2020. Nonetheless, we find the
NLRB’s rationale in King Soopers, Inc. persuasive and hold that in future cases
(including further proceedings in this case), the compliance officer shall award interim
employment expenses, with interest, regardless of an employee’s interim employment
earnings. We overrule Otay Water District, supra, PERB Decision No. 1634-M to the
extent it is inconsistent with this decision.
D. Interest
In this case, the remedial orders direct the District to pay 7 percent interest on
all amounts owed, without specifying whether such interest is simple or compound.
The proposed decision notes the parties’ eventual agreement to use simple interest,
and neither party has asked us to consider that issue.23
In cases like this one where the backpay period spans more than one year, it is
typically necessary to perform multiple separate interest calculations for each affected
employee. Part V illustrates this approach, separately analyzing whether each driver
23 While we decline to consider the issue in this case given the parties’
agreement, we note that in 2010 the NLRB began including daily compound interest in
all monetary relief. (Kentucky River Medical Center (2010) 356 NLRB 6.)
41

lost wages or benefits during each year of the backpay period and then separately
calculating interest for each category of losses a driver experienced each year.24
Interest may be calculated on a spreadsheet, or interest calculators are readily
available. (See, e.g., https://www.calculatorsoup.com/calculators/financial/index-
interest-apr-calculators.php [last accessed Mar. 18, 2022].) Using an interest
calculator to compute interest on a year’s wage or benefit loss, one must first input the
dollar amount for that category of annual net losses. One then inputs the interest
rate.25 Finally, one must input the interest accrual duration, or certain calculators
simplify that variable by asking the user to input the beginning and ending accrual
dates.26 The ALJ used the following formula to express how he calculated simple
interest on each annual wage or benefit loss: [net loss amount] × 7% × [#] [years]) =
[interest amount].
Although neither party took exception to the ALJ’s interest duration calculations,
and we therefore do not disturb his approach to determining the interest accrual period
for drivers’ damages through December 31, 2020, we nonetheless analyze the ALJ’s
approach to guide Board agents and parties in future compliance proceedings. First,
the ending accrual date is normally the date on which an employee resumes work
24 We endorse the ALJ’s decision to perform separate interest calculations on
lost wages and lost benefits, though that is not the only permissible method.
25 If calculating compound interest, one must input the compounding frequency.
26 For example, if the beginning date is July 1, 2018, and the end date is
April 15, 2022, the duration (including the first and last date) is 1385 days. (See, e.g.,
https://www.timeanddate.com/date/durationresult.html [last accessed Mar. 18, 2022].)
Dividing that figure by 365 days per year yields a duration of 3.79 years.
42

after accepting a reinstatement offer or declines reinstatement. Here, given that the
District’s continuing refusal to reinstate the drivers has led to multi-stage compliance
proceedings, we find no fault in the ALJ’s decision to calculate initial damages and
interest only through December 31, 2020, leaving final calculations for a later stage.
Second, the ALJ used January 1 of each year as the beginning interest accrual
date for all losses incurred in that year. Although neither party excepted to this
approach, we do not endorse it for future compliance matters. Taking year 2020
losses as an example, the ALJ assumed that as of December 31, 2020, a full 7
percent interest had accrued on every dollar of 2020 losses, including losses incurred
during January 2020 as well as losses incurred during December 2020. In fact,
however, as of December 31, 2020, a year’s interest had accrued on losses incurred
in early January 2020, but virtually no interest had accrued on losses incurred in late
December 2020. If an employee tends to steadily incur losses between January and
December, it is normally proper to use an average accrual date of July 1, 2020,
meaning that only a half year’s interest would accrue on 2020 losses by December 31,
2020. In other words, one can average losses over the course of the year by
assuming that approximately 1/12 of the year’s losses occur each month. This allows
one to input a fair average starting date for duration calculations.27
27 Certain factual scenarios require a different approach. For instance, the
drivers lost a small amount of income—which the ALJ labeled “2013 wages”—
because the District did not pay them a lump sum wage increase, retroactive to July 1,
2013, that the drivers would have received if they continued to serve as District
employees in fall 2014. As the ALJ noted, interest on this loss did not begin accruing
in 2013. Rather, it began accruing on the date in 2014 when the drivers would have
received the lump sum payment had the District not laid them off. Drivers’ 2014
losses, incurred post-layoff and therefore exclusively in the second half of the year,
43

In the absence of exceptions, we do not disturb the ALJ’s approach to interest
duration for calculating interest on drivers’ damages accruing through December 31,
2020. However, future compliance calculations should be consistent with this decision.
E. Tax Neutralization
CSEA has asked for make-whole relief to cover the potential increased tax
liability drivers may incur from a lump sum backpay award that artificially moves
earnings from multiple tax years into a single tax year, thereby making large parts of
such income taxable at a higher rate. As we noted in County of Ventura (2021) PERB
Decision No. 2758-M, p. 56, fn. 23 (Ventura), the Legislature vested PERB with
sufficiently broad remedial authority to order such relief, which is known as tax
neutralization. While the ALJ wrote without the benefit of Ventura, he correctly
concluded that tax neutralization is an allowable form of make-whole relief, relying in
part on NLRB precedent favoring such relief. (See, e.g., Tortillas Don Chavas (2014)
361 NLRB 101, reaff’g. Latino Express, Inc. (2012) 359 NLRB 518.)28
supply another illustrative example. When an employee incurs losses only between
July 1 and December 31, it is most commonly proper to use October 1 as an average
accrual date. We offer these examples by way of illustration only, as neither party
excepted to any of the ALJ’s interest calculations.
28 The ALJ correctly noted that in Otay Water District, supra, PERB Decision
No. 1634-M, the Board adopted a proposed decision that found the arguments in favor
of tax neutralization “persuasive” but ordered no such remedy given the highly unusual
procedural posture. (Id., adopting proposed decision at p. 8.) Specifically, neither the
Board nor any PERB ALJ had issued findings or conclusions as to liability or remedy;
instead, the ALJ had merely approved and adopted a stipulated order in which the
employer admitted liability and the parties stipulated to a discrete category of
damages. (Id., adopting proposed decision at p. 2.) Thus, Otay Water District is
consistent with Ventura, supra, PERB Decision No. 2758-M.
44

Having found tax neutralization generally allowable, the ALJ disallowed such
relief in this case because CSEA failed to introduce evidence regarding projected tax
losses and the ALJ considered that to be a waiver. The ALJ’s reasoning would be
sound had this case, like most, involved only a single stage of compliance
proceedings. In that more common instance, even though a charging party has not yet
incurred the tax liability warranting neutralization, the charging party has the burden to
estimate likely tax consequences. Whether the charging party engages a professional
or relies on tax software or an online tax calculator, the charging party must detail the
basis for its estimate, thereby allowing the respondent a chance to contest the
estimate and the compliance officer to assess what level of tax neutralization, if any, is
appropriate based on a preponderance of the evidence.
This case is an exception. At the time of the compliance hearing and post-
hearing briefs, CSEA was aware of the District’s continued failure to reinstate drivers
or pay any of the ordered make-whole relief. Because the current compliance stage
involves determining the District’s monetary obligation to drivers over a seven-year
period, and a later compliance stage will be necessary given the District’s failure to
reinstate drivers to date, CSEA can be more exact in its tax neutralization evidence.
Specifically, in the next compliance stage, the parties will have better information
regarding: (1) the exact amounts each driver is owed for damages and interest
accrued through December 31, 2020; (2) in which tax year drivers are receiving these
amount; (3) what federal and state tax brackets, rates, and rules apply in that year;
45

and (4) the drivers’ other income, deductions, and filing status at that time.29 These
facts will improve the basis for both parties to enhance their tax neutralization
estimates. If any drivers have already submitted tax returns based on the lump sum
amounts, the parties will have an even more accurate basis for their estimates. In this
instance, CSEA therefore was correct in waiting to introduce tax neutralization
evidence, as such evidence will be more concrete when introduced later.
Fault for the multi-stage compliance proceedings lies with the District, which
has persistently refused to take any steps toward complying with its most central
obligations. Failing to award tax neutralization relief would give the District the benefit
of evading compliance. The prolonged proceedings negatively impact the drivers, and
we do not fault CSEA for recognizing this reality and deciding it was premature to
estimate tax neutralization relief given that damages and interest continue to accrue,
thereby increasing the eventual lump sum payment and risking ever-larger tax
consequences. However, the parties must expedite remaining compliance
proceedings as much as possible. We therefore direct that in the next compliance
stage, CSEA must provide competent evidence, estimates, and argument regarding all
tax neutralization relief that it seeks in this case.
III. 	The District’s Obligation to Reimburse CSEA’s Lost Dues
The remedial order in Bellflower I, supra, PERB Decision No. 2544, at Sections
B.4 and B.8, requires the District to compensate CSEA for dues it lost by virtue of the
29 The parties can also consider the retroactive pay increases in the 2014-2017
CBA, which, in the absence of a layoff, would have generated a small lump sum
payment sometime after October 1, 2014.
46

District’s subcontracting, plus 7 percent annual interest. (Id. at p. 13.) Although the
District has not argued that PERB should deduct this dues obligation from employee
backpay, we nonetheless provide further explanation as to why that approach would
constitute error. An employer’s obligation to reimburse dues does not allow it to
reduce its backpay payments to employees by an equivalent amount. (Regents of the
University of California (2014) PERB Decision No. 2398-H, p. 37 [explaining that “it is
not appropriate to penalize employees for the employer’s unfair practice by requiring
that they remit back dues”]; see also Regents of the University of California (Berkeley)
(2018) PERB Decision No. 2610-H, pp. 96-97; City of Sacramento (2013) PERB
Decision No. 2351-M, pp. 49-50.) Thus, it is not incumbent upon employees to remedy
the collateral injury to the exclusive representative—diminution of the bargaining unit
and the corresponding diminution in both bargaining power and dues—caused by an
employer’s unilateral change.30
We join the ALJ in declining to eliminate or reduce the District’s obligation to
reimburse lost dues based on the argument that the drivers could have obtained jobs
30 An unlawful layoff that shrinks the size of a bargaining unit tends to reduce a
union’s dues income on an ongoing basis irrespective of which employees may retire
or leave for other jobs. For instance, absent a layoff, employees who retire or resign to
take a higher paying job would leave the union’s dues stream roughly intact, as the
employer would backfill the vacancies. As this case shows, because terminated
employees often find higher paying jobs eventually, and in such timeframes they
receive no backpay, in those years there is no damages amount from which one could
deduct dues. This case also shows another example with similar repercussions: at a
certain age, employees may decide to retire from work, but as the employer fills such
vacancies, the union can continue receiving dues in the absence of a layoff. It is
therefore impractical and unfair to make laid off employees responsible for the union’s
dues losses.
47

with Hemet USD and paid dues to a different CSEA chapter. As discussed above, the
drivers’ failure to apply to Hemet USD did not extinguish the District’s backpay liability
to the drivers arising from the unlawful layoff. For the same reason, their failure to
apply to Hemet USD also did not extinguish the District’s liability for dues CSEA would
have received from the drivers (or their replacements) absent the layoff.31
Furthermore, the ALJ correctly rejected the District’s claim that the amount it
owes CSEA for lost dues should be offset by the fact that the District did not disrupt
the flow of dues from employees to CSEA during the four-year gap between the 2007-
2010 CBA and the 2014-2017 CBA. This argument is frivolous for two reasons. First,
EERA required the District to continue remitting dues payments to CSEA during that
period, and the District would have committed an unfair practice had it violated that
duty. (Gov. Code, § 3543.1, subd. (d); Ed. Code, § 45168, subd. (a)(1).) Second, even
if this were not the law, any such continuation of union members’ ability to pay their
dues via payroll deduction could not create a credit owed from CSEA to the District,
much less a credit that PERB could honor in remedying an unfair practice.
The ALJ properly relied on information from CSEA’s membership dues
database, all of which was information the District had provided to CSEA. The ALJ
specifically relied on the dues figure that each driver paid CSEA in June 2014, just
before the layoff, implicitly concluding that it was a sufficiently representative amount.
31 While we find no reason to disturb the ALJ’s alternate conclusion that CSEA
Chapters 32 and 104 are not the same employee organization, the issue is irrelevant
given that the drivers were under no obligation to apply to work at Hemet USD.
48

Neither party has challenged that conclusion. Nor has CSEA sought any changes to
lost dues calculations based on negotiated wage increases.
The ALJ estimated the dues CSEA lost from each driver’s layoff for each year,
using the following formula: [driver’s June 2014 dues] × [#] [work months] = [lost dues,
full year]. We do not disturb the ALJ’s decision to assume drivers paid dues during the
average 10.5 months per year they worked, but not during the average 1.5 months per
year they did not work; no record evidence undercuts this reasonable assumption.
However, the ALJ improperly reduced the number of work months below 10.5 months
if a driver ceased mitigation efforts, ceased working, or did not submit a claim for lost
wages. This was error because, had no layoff occurred, CSEA would have continued
to receive dues from the ten bus driver positions. This is so even if certain drivers
might have eventually stopped working for the District or retired, as the District would
have filled such vacancies. Just as it is not fair for employees to bear the burden of
reimbursing CSEA for lost dues, it also is unfair to reduce CSEA’s lost dues recovery
because of any individual employee’s independent decision to cease mitigating losses
caused by the unlawful layoff.
Given that it is impossible to know which drivers may have retired or left for
other jobs were they not laid off, we use a monthly dues figure of $34.75 per driver,
which is the average amount the 10 drivers paid in June 2014. We apply no escalator
for wage increases, as CSEA did not ask us to do so. Multiplying $34.75 by 10.5
months and 10 drivers, shows that CSEA lost about $3,648.75 per year. The current
compliance stage covers a 6.5-year period from July 1, 2014, through December 31,
2020, meaning that CSEA lost approximately $23,716.88 before interest. In
49

recalculating the back dues owed, we use a corrected interest accrual period rather
than using the ALJ’s improper approach. Because losses were steady throughout the
6.5-year period, we need not perform an annual interest calculation. Instead, we can
assume that the average accrual date for the entire amount of lost dues was halfway
through the 6.5-year period, or October 1, 2017, leading to an interest accrual period
of 3.25 years. Applying a simple interest rate of 7 percent per year, the total interest is
22.75 percent. Therefore, CSEA’s losses and interest through December 31, 2020,
are $23,716.88 x 1.2275 = $29,112.47.
IV. 	The District’s Obligation to Reimburse CSEA for Opposing a Frivolous Motion
In assessing whether to award legal expenses for sanctionable litigation
conduct, PERB applies a standard akin to Rule 11 of the Federal Rules of Civil
Procedure. (Sacramento City Unified School District (2020) PERB Decision No. 2749,
p. 11 (Sacramento).) In Bellflower III, supra, PERB Order No. Ad-475a, the Board
found that the District filed a reconsideration request in bad faith, failed to comply with
the basic requirements of PERB’s regulation governing such requests, ignored
controlling precedent, and had no serious or colorable argument for prevailing under
existing law or for modifying existing law or establishing new law. (Id. at p. 5.) The
Board further noted that, in a prior PERB compliance matter, the California Court of
Appeal found the District engaged in similar dilatory tactics, such as: (1) forcing the
Board to go to court to enforce a final order, and then appealing the trial court’s
resulting order “for no discernible purpose other than to delay” (Public Employment
Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 941); (2)
asserting waived arguments (ibid.); and (3) arguing for an “absurd” interpretation of
50

governing regulations (id. at p. 942, fn. 12). For these reasons, the Board directed the
District to “reimburse CSEA for reasonable attorney fees for the preparation and filing
of its response to the request for reconsideration, the amount to be determined on
remand along with all other outstanding compliance matters.” (Bellflower III, supra,
PERB Order No. Ad-475a, pp. 5-6.)32
Reviewing attorney time records, verified by declaration, is an accepted method
for assessing the reasonableness of the number of hours spent litigating a matter.
(See Horsford v. Board of Trustees of California State University (2005) 132
Cal.App.4th 359, 396-397 (Horsford) [it is appropriate to rely on verified declarations of
time records, absent a clear indication that the records are erroneous].) The goal is to
ensure that the award is consistent with the prevailing market rate for professionals at
a private law firm with a similar degree of experience. (Sacramento, supra, PERB
Decision No. 2749, p. 16.) This also provides an orderly system for resolving fee
disputes that does not require protracted litigation into the appropriateness of a fee
demand. (Id. at p. 20, citing Serrano v. Unruh (1982) 32 Cal.3d 621, 642.)
32 Sacramento, supra, PERB Decision No. 2749 also explained that standard
make-whole principles warrant awarding a charging party reasonable legal expenses it
incurred in a separate proceeding to “remedy, lessen or stave off the impacts of the
other party’s unfair practice.” (Id. at p. 11.) In that instance, the charging party need
not establish the Rule 11-type factors. (Ibid.) For example, when a respondent either
declines to appeal a Board order or exhausts all available appeals, but nonetheless
fails or refuses to comply with the final Board order and thereby necessitates ancillary
court litigation such as the enforcement proceedings in Public Employment Relations
Bd. v. Bellflower Unified School Dist., supra, 29 Cal.App.5th 927, a charging party may
seek reimbursement for reasonable expenses it incurred as real party in interest in the
ancillary litigation.
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In declarations submitted to the ALJ, CSEA sought $5,680 for time three
attorneys spent responding to the District’s reconsideration request, plus $7,625 for
time two attorneys spent preparing the attorney fee motion and accompanying
declarations. We address each request in turn.
A. Fees Incurred Responding to the District’s Reconsideration Request
When PERB awards legal expenses, either as make-whole relief or as a
sanction like in this case, a party may seek reimbursement for “virtually any item for
which a law firm customarily bills a client, including, inter alia, billable professional
services (meaning attorney and law clerk services and certain ‘paralegal’ services that
may be performed by legal assistants with or without a paralegal license), as well as
incidental costs such as filing fees, electronic research fees, or fees for service of
process.” (Sacramento, supra, PERB Decision No. 2749, pp. 14-15.) PERB also
awards pre-judgment and post-judgment interest on legal expenses. (Id. at p. 19.)
The ALJ correctly noted that the appropriate method for determining
professional fees is generally the lodestar method, which involves multiplying a
reasonable number of hours spent on a matter by a reasonable hourly rate for private
legal professionals with similar experience. (Sacramento, supra, PERB Decision
No. 2749, pp. 15-16.) PERB may adjust the resulting fee calculation upward or
downward, thereby allowing some flexibility in assessing the fair market value of the
legal services performed. (Ibid.) It is not appropriate, as the ALJ correctly noted, to
reduce a lodestar award merely because some or all the legal professionals work for a
nonprofit, government agency, or in-house legal department, or otherwise are paid a
flat salary and do not bill clients for their time. (Id. at pp. 16-19 & fn. 10.)
52

CSEA submitted declarations from three attorneys who worked on its response
to the District’s reconsideration request: CSEA Chief Counsel Andrew Kahn, CSEA
Deputy Chief Counsel Christina Bleuler, and CSEA Lead Staff Attorney Sonja
Woodward. CSEA did not request compensation for time spent by legal assistants, nor
did CSEA seek ancillary litigation costs.
Woodward had been practicing law for 27 years at the time of her declaration.
While she works primarily on matters arising under the Education Code, she also has
PERB experience. Woodward has served as the principal attorney in numerous
matters, including appellate work leading to published court opinions and PERB work
leading to precedential Board decisions. CSEA argues that this experience justifies at
least $425 per hour for her services. Woodward spent approximately 10 hours drafting
CSEA’s opposition to the District’s reconsideration request. CSEA accordingly
requests $4,250 for her work preparing the opposition.
Bleuler had been practicing law for 42 years at the time of her declaration.
Bleuler’s law practice involves topic areas akin to Woodward’s, though Bleuler serves
as a higher-level attorney and has practiced for more years. CSEA argues this
experience justifies at least $525 per hour for her services. Bleuler spent
approximately two hours revising CSEA’s opposition to the District’s reconsideration
request. CSEA accordingly requests $1,050 for her work preparing the opposition.
Kahn had been practicing law for approximately 33 years at the time of his
declaration. He served as a judicial law clerk for the chief judge for the Ninth Circuit
Court of Appeals for one year and has been practicing labor law on behalf of unions
since his clerkship. A San Francisco Superior Court judge found that $595 per hour
53

was a reasonable market rate for Kahn’s work, though in this matter CSEA sought
only a discounted rate of $475 per hour for Kahn’s services in his work on the brief in
question. Kahn spent four-fifths of an hour reviewing CSEA’s opposition to the
District’s reconsideration request. Accordingly, CSEA requests $380 for his work
preparing the opposition.
We agree with the ALJ that the requested rates are comparable to or less than
market rates charged by attorneys with similar experience. The District points to no
evidence or argument to the contrary, and we affirm the ALJ’s conclusion that CSEA
has requested reasonable hourly rates.
The District argues that CSEA claims an unreasonable number of hours. To the
contrary, CSEA’s attorneys were strikingly efficient in spending only 12.8 hours
opposing the District’s reconsideration request. Though the District’s reconsideration
request was frivolous, the length of the record, number of issues, and importance of
the matters at stake were all unusually high. CSEA’s opposition to the reconsideration
request reflects high-level lawyering in a short amount of time.33
33 The ALJ found that CSEA should have provided more detail regarding the
hours it spent opposing the District’s reconsideration request. The ALJ therefore
reduced CSEA’s fee award by 10 percent, from $5,680 to $5,112. We do not endorse
the ALJ’s 10 percent reduction, because: (1) the declarations in question covered a
discrete category of work carried out in a low number of hours; (2) the amount of time
claimed was not integrated with other, non-compensable work and was manifestly
reasonable for the work product produced; and (3) requiring greater efforts to prove
the value of an attorney fee award lowers the value of the award and therefore runs
contrary to Sacramento, supra, PERB Decision No. 2749, p. 20. However, CSEA took
no exception to the ALJ’s 10 percent reduction, and we decline to exercise our
discretion to reverse it sua sponte.
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Lastly, the ALJ correctly cited Sacramento, supra, PERB Decision No. 2749, for
the proposition that interest accrues on litigation expenses. (Id. at p. 19.) The ALJ
shall determine the amount of interest owed in the next compliance stage.
B. Fees Incurred Preparing the Attorney Fee Motion
Kahn spent 15 hours preparing CSEA’s attorney fee motion. CSEA accordingly
asked the ALJ to award it $7,125 for Kahn’s work on the motion, plus an additional
$500 for another attorney’s small contribution to the motion.
In Sacramento, supra, PERB Decision No. 2749, we held as follows:
“If disputes over the v alue of reimbursable legal expenses
extend to such a degree that the Association is required to
perform work beyond drafting an initial set of declarations
and supporting briefing, then any additional, reasonable
time the Association spends effectuating its legal expenses
award is compensable as part of the make-whole remedy.
(See, e.g., Graham v. DaimlerChrysler Corp. (2004)
34 Cal.4th 553, 580 [work on establishing amount of
reasonable attorney’s fees must be compensable in order
to ensure that lengthy proceedings on that topic do not
dissipate the value of order awarding legal expenses].)
Normally, however, compliance proceedings to establish
estimated reasonable legal expenses should involve review
of sworn declarations and should not lead to protracted
litigation.”
(Id. at pp. 19-20.)
Applying these principles, the ALJ found that CSEA had not yet had to perform
work beyond drafting an initial set of declarations and supporting briefing. The ALJ
therefore declined CSEA’s request to award it “fees on fees,” viz., to reimburse CSEA
for time spent on its attorney fee motion. The ALJ added, however, that if “CSEA is
55

required to expend additional attorney time and resources to recover its attorneys’
fees under the order in Bellflower III, additional sanctions may become appropriate.”
CSEA excepted to the ALJ’s conclusion, mainly arguing that: (a) it offered the
District a stipulation about its fee calculations that would have avoided the need for
filing a motion; (b) it proposed this stipulation without prejudice to any right the District
had to seek judicial review of the Board’s attorney fee order itself; and (c) preparing
the motion was therefore a time expenditure caused by the District’s obstinance. The
District continues to disagree with the underlying fee award but urges in the alternative
that the ALJ correctly declined to award CSEA fees on fees.
We affirm the ALJ’s decision to deny fees on fees through June 17, 2021, the
date of the proposed decision. At that time, CSEA attorneys had only performed the
level of work that is non-compensable under Sacramento, supra, PERB Decision
No. 2749, pp. 19-20, viz., drafting an initial set of declarations and supporting
briefing.34 However, we also affirm the ALJ’s correct suggestion that CSEA’s
entitlement to fees on fees began to the extent it has had to expend further time to
secure its award since June 17, 2021. CSEA shall recover fees and interest for all
hours its attorneys reasonably have spent and will spend to secure the litigation
expenses award from then until the District pays the award. (Ibid.) This includes, for
example, time spent responding to the District’s exceptions regarding attorney fee
34 The ALJ found CSEA had not yet had to engage in lengthy proceedings to
secure its attorney fee award, but the ALJ simultaneously reduced CSEA’s award for
failing to perform additional work by providing more detail regarding its claimed
12.8 attorney hours. While these rulings are in tension with one another, the error, as
discussed above, was in the ALJ’s conclusion that CSEA did not sufficiently explain
how its attorneys spent their claimed 12.8 hours.
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issues. Otherwise, as we warned in Sacramento, lengthy proceedings requiring
substantial additional attorney hours will “dissipate the value” of the award. (Id. at
p. 19, citing Graham, supra, 34 Cal.4th at p. 580.)
V. 	Calculating Drivers’ Damages and Interest Through December 31, 2020
As noted above, CSEA argued to the ALJ that each driver would have worked
11 months per year, representing the employees’ standard 10-month work year plus
one additional month during the ESY period. However, CSEA no longer challenges the
ALJ’s contrary findings that: the District assigned ESY work using a seniority-based
bidding procedure (see Bellflower I, supra, PERB Decision No. 2544, adopting
proposed decision at p. 33); District witnesses credibly testified that the District
needed between four and six drivers for approximately one month of ESY work each
July; and therefore, on average, each driver would work one-half month during the
ESY program. We find no basis to disturb the ALJ’s estimate that each driver would
have worked 10.5 months per year.
To determine drivers’ average monthly wages, the ALJ looked at pre-layoff
wage information. Although CSEA asked the ALJ to calculate a monthly average using
only the drivers’ wages in the first six months of 2014 (before the layoff), CSEA did not
except to the ALJ’s decision to calculate an average using both 2013 and 2014 data,
given that the record reflects some annual variation in drivers’ hours.35 Calculating
35 The ALJ noted that for one driver, S.B., it was necessary to calculate average
monthly wages using only 2014 data, since S.B. had been an Interim Manager from
January to August 2013. The ALJ excluded S.B.’s 2013 wages from any calculations,
thereby bringing the calculation closer to S.B.’s likely wages going forward. Thus, for
every driver except S.B., the ALJ calculated 2013 average monthly income by dividing
the employee’s 2013 total gross wages by 10.5. The ALJ calculated each employee’s
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such reasonable approximations or averages is appropriate. (San Jacinto Unified
School District (1994) PERB Decision No. 1078, p. 4 & adopting proposed decision at
pp. 38-39.) Moreover, the ALJ’s decision to calculate a monthly average in this
manner adequately addressed the District’s concern that employee hours fluctuated
due to changes in the District’s overtime needs or for other reasons.
It is standard to incorporate wage increases into backpay calculations, and the
District offered no contrary argument or evidence. We affirm the ALJ’s decision to
incorporate four negotiated wage increases: a 4 percent raise retroactive to July 1,
2013 (R1); a 3 percent raise retroactive to July 1, 2014 (R2); a 3 percent raise
effective July 1, 2015 (R3); and a 5.67 percent raise effective January 1, 2018 (R4).
Using these assumptions, we affirm the following formulas the ALJ explained
for calculating projected wages through December 31, 2020.
2013 Projected Gross Lost Wages: Although the District did not lay off its
drivers until six months into 2014, the drivers nonetheless incurred a loss the ALJ
labeled as “2013 lost wages,” as they did not receive the 4 percent R1 raise that the
District ultimately implemented retroactive to July 1, 2013. The ALJ estimated the
2013 loss by taking 4 percent of average 2013 monthly wages for 4.5 months,
corresponding to the average amount of time they worked from July through
2014 average monthly income by dividing the employee’s 2014 actual earnings by the
six months worked prior to the July 1 layoff. The ALJ then calculated the average of
the 2013 and 2014 monthly averages, except in S.B.’s case the ALJ used only the
2014 monthly average.
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December 2013.36 For all employees other than S.B., the ALJ used this formula: [2013
average monthly earnings] × 4% × 4.5 [months] = [2013 total gross lost wages].
2014 Projected Gross Lost Wages: The ALJ split 2014 into halves. In the first
six months of the year, drivers’ only loss was, once again, that they did not receive the
4 percent retroactive R1 raise. Thus, the ALJ augmented employees’ actual District
wages for the first half of 2014 by 4 percent as follows: [2014 actual earnings] × 4% =
[2014 gross lost wages, first half].
For the last six months of 2014, the ALJ took three steps to project lost wages.
First, the ALJ increased each driver’s average monthly earnings by 4 percent to
account for the R1 raise. The ALJ next increased that monthly figure by another 3
percent to account for the R2 raise that took effect retroactive to July 1, 2014. The ALJ
lastly multiplied the resulting monthly average by the number of months the employee
was working or seeking work (up to 4.5, corresponding to the average amount of time
drivers would have worked from July through December 2014), as follows: [estimated
monthly earnings (R1-R2)] × [#] [months] = [2014 gross lost wages, second half]. In the
formula, (R1-R2) denotes that the estimated monthly earnings incorporated the first two
wage increases.
36 For periods of time after July 1, 2014, the ALJ had no choice but to estimate
hours that drivers would likely have worked. For the brief period before the layoff,
when drivers lost only retroactive wage increases, the ALJ could have looked at actual
hours worked, but neither party objected to the ALJ using the same approach for that
timeframe, and in any event, it led to a reasonable approximation. The parties similarly
do not dispute the ALJ’s slightly modified approach for S.B.’s 2013 losses, which
reasonably dealt with the fact that S.B. worked as an Interim Manager and earned a
higher wage from January through August of 2013.
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The sum of an employee’s 2014 first half lost wages and 2014 projected second
half gross lost wages results in that employee’s 2014 total projected gross lost wages.
2015 Projected Gross Lost Wages: For 2015, it is again proper to project gross
lost wages in halves, because of the 3 percent R3 raise that took effect on July 1,
2015. For the first half of the year, the ALJ calculated projected gross lost wages by
multiplying estimated monthly earnings (R1-R2) by the number of months the
employee was working or seeking work (up to 6, as drivers would be expected to work
throughout the months of January through June 2015), as follows: [estimated monthly
earnings (R1-R2)] × [#] [months] = [2015 projected gross lost wages, first half].
For the second half of the year, the ALJ augmented the estimated monthly
earnings (R1-R2) by 3 percent to incorporate the R3 raise for the latter half of the
year. The ALJ then multiplied this new estimated monthly average (R1-R3) by the
number of months the employee was working or seeking work (up to 4.5,
corresponding to the average amount of time they would have worked from July
through December 2015), as follows: [estimated monthly earnings (R1-R3)] × [#]
[months] = [2015 projected gross lost wages, second half].
The sum of an employee’s 2015 projected first half lost wages and 2015
projected second half lost wages is that employee’s 2015 total gross lost wages.
2016 and 2017 Projected Gross Lost Wages: There were no pay rate
adjustments in 2016. Therefore, to calculate each driver’s 2016 projected gross lost
wages, the ALJ multiplied estimated monthly earnings (R1-R3) by the number of
months the driver worked or sought work, with a maximum of 10.5 months, as follows:
[estimated monthly earnings (R1-R3)] × [#] [months] = [2016 projected gross lost
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wages]. Since there were also no pay rate changes in 2017, the same formula yields
each employee’s 2017 projected gross lost wages.
2018 Projected Gross Lost Wages: The 2018 lost wages projection must
account for the 5.67 percent R4 raise that took effect on January 1, 2018. The ALJ
therefore augmented each employee’s estimated monthly earnings (R1-R3) by 5.67
percent. The ALJ then multiplied the resulting new monthly average (R1-R4) by the
number of months each employee was working or seeking work, with a maximum of
10.5 months, as follows: [estimated monthly earnings (R1-R4)] × [#] [months] = [2018
projected gross lost wages].
2019 Projected Gross Lost Wages: There were no pay rate adjustments in
2019. Therefore, the ALJ calculated each driver’s 2019 projected gross lost wages by
multiplying the driver’s estimated monthly earnings (R1-R4) by the number of months
the driver was working or seeking work, with a maximum of 10.5 months, as follows:
[estimated monthly earnings (R1-R4)] × [#] [months] = [2019 projected gross lost
wages]. The District contends that its backpay liability under Sections B.2 and B.6 of
the Board’s Order in Bellflower I ended on July 1, 2019, the effective date of the 2019
Transportation Agreement. As explained above, however, the District did not establish
that its renewed subcontracting cut off further liability. The ALJ therefore correctly
found that the 2019 Transportation Agreement did not excuse the District’s obligations
to make employees whole for losses sustained after June 30, 2019.
2020 Projected Gross Lost Wages: There were no pay rate adjustments in
2020. Therefore, the ALJ calculated 2020 projected gross lost wages by multiplying a
driver’s estimated monthly earnings (R1-R4) by the number of months the driver was
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working or seeking work, with a maximum of 10.5 months, as follows: [estimated
monthly earnings (R1-R4)] × [#] [months] = [2020 projected gross lost wages]. The
District contends that its backpay liability under Sections B.2 and B.6 of the Board’s
Order in Bellflower I ended on July 1, 2020, the effective date of the 2020
Transportation Agreement. As explained above, however, the District did not establish
that its renewed subcontracting cut off any further liability. The ALJ therefore correctly
found that the 2020 Transportation Agreement did not excuse the District’s obligations
to make employees whole for losses sustained after June 30, 2020.
The ALJ also correctly found that the District did not introduce evidence
demonstrating that the COVID-19 pandemic would have caused the drivers to suffer
reduced pay had they remained District employees. Fogerty, Hemet USD’s Director of
Transportation, testified that Hemet USD employees continued driving for the District,
but primarily transported food rather than students. He did not testify that the
pandemic led to a reduction of hours or pay cuts of any kind.
Projected Benefit Losses: The ALJ calculated medical benefit losses as the
difference between a driver’s post-layoff and pre-layoff benefit costs, as follows:
[actual post-layoff benefit cost] – [pre-layoff benefit cost] = [net benefit cost]. The ALJ
explained that for drivers whose medical costs varied month-to-month, it was
necessary to tabulate costs monthly. Neither party excepted to the ALJ’s calculations.
The ALJ estimated retirement-related losses using two formulas. First, the ALJ
calculated that [2014 total District contributions] ÷ 6 = [pre-layoff average monthly
contribution]. Second, the ALJ calculated retirement-related losses as: ([pre-layoff
average monthly contribution] – [alternative monthly contribution]) × [#] [months] = [net
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lost contribution]. None of the drivers claimed lost contributions for any period in which
they earned alternative retirement benefits. Accordingly, the alternative monthly
contribution variable is zero for each driver.
We proceed to detail for each driver: (1) pre-layoff employment history; (2) post-
layoff mitigation efforts and subsequent employment (including unemployment benefits
received, which is relevant to mitigation, as noted above in Part II(B)); (3) gross lost
wages through December 31, 2020; (4) net lost wages (gross lost wages minus
offsets) and interest accrued through December 31, 2020; (5) lost medical and/or
retirement benefits and interest through December 31, 2020; and (6) total net
damages and interest through December 31, 2020. Except as noted in this decision,
we affirm and adopt the ALJ’s calculations.
A. D.C.
1. 	Pre-Layoff Employment History
D.C. worked as a District Bus Driver for approximately 14 years. The District
paid D.C. $40,518.29 in 2013 and $22,769.17 in 2014. She worked for the District 35
to 40 hours per week in 2014.
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
After her layoff, D.C. applied for unemployment benefits. She received $11,000
in 2014 unemployment benefits.
D.C. applied for bus driver positions at multiple school districts, including ABC
Unified School District, Anaheim Union High School District (Anaheim UHSD), Bassett
Unified School District (Bassett USD), Downey Unified School District (Downey USD),
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Hemet USD, and Norwalk-La Mirada Unified School District. She did not receive offers
in 2014 and did work for any employer other than the District that year.
D.C. heard about the Hemet USD job opening from E.V. in about September
2014. Hemet USD rejected D.C.’s application because she did not include a résumé,
which she did not have at the time. She then contacted E.V., who told her that the
starting wage at Hemet USD was approximately $17 per hour. By that point, D.C.
believed that she could earn $23 per hour working at Anaheim UHSD.
Anaheim UHSD hired D.C., and she started working there on January 7, 2015.
D.C. worked there continuously until at least the date she testified at the compliance
hearing. There is no reason to believe that D.C. stopped working at Anaheim UHSD
before the end of 2020. Anaheim UHSD paid D.C. $22,465.64 in 2015 wages. She
testified that she only worked 20 hours per week during her probationary period, and
her hours increased to 35 per week in 2016. Anaheim UHSD paid D.C. $35,697.06 in
2016 wages, $39,505.05 in 2017 wages, $39,095.99 in 2018 wages, and $43,922.18
in 2019 wages. In 2019, D.C. also started working for Lux Bus America, a private
charter bus company. D.C.’s 2019 gross wages from Lux Bus were $14,768.90
according to her Lux Bus Form W-2 that year.
At the start of 2020, D.C. worked an average of 35 hours per week at Anaheim
UHSD at a pay rate of $27.68 per hour. Due to COVID-19, Anaheim UHSD reduced
her average hours to approximately 25 per week.
Before the pandemic, D.C. worked an average of 20 hours per week for Lux
Bus America at a rate of $19 per hour. After the pandemic began, Lux Bus America
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reduced D.C.’s hours to approximately 16 per week, until about October 9, 2020, when
she stopped receiving any assignments for the remainder of 2020.
We affirm the ALJ’s conclusion that D.C. at all times acted consistently with the
inclination to work and be self-supporting, thereby satisfying her duty to mitigate
damages from the time of the layoff until at least the end of 2020.
The ALJ also resolved a dispute about what portion (if any) of D.C.’s earnings
at Lux Bus should offset her projected lost earnings. CSEA argued that earnings from
hours worked beyond what D.C. would have worked at the District should not count.
The ALJ, citing NLRB v. Community Health Services (10th Cir. 2016) 812 F.3d 768,
777, correctly noted that when an unlawfully laid-off employee takes on a primary
replacement job but also a second job that he or she could have taken even absent
the layoff, such extra wages do not normally offset lost wages.37 The ALJ also noted,
however, that Anaheim UHSD reduced D.C.’s hours by 10 hours per week after the
onset of COVID-19. The ALJ therefore found that the first 10 hours D.C. worked for
Lux Bus stood in for the 10 hours she lost from Anaheim UHSD, meaning these
10 weekly hours do offset her lost earnings for the 27-week period beginning April 1,
2020, and ending on October 9, 2020, when Lux Bus stopped providing D.C. with
work. At 10 hours per week, for 27 weeks, and $19 per hour, the ALJ thus calculated
37 The ALJ referred to this policy as covering income from “moonlighting.” This
reference is correct to the extent that “moonlighting” means having more than one job
at the same time, but incorrect if it suggests that a secondary job necessarily involves
fewer work hours than a primary job. We use the word “primary” only to mean that a
job occupies approximately the same hours as the employee’s job before layoff.
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D.C.’s 2020 offsetting income from Lux Bus as $5,130. CSEA does not dispute this
determination.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings according to
the following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013
average monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average
monthly earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $40,518.29 ÷ 10.5 = $3,858.88 [2013 average
monthly earnings]; (2) $22,769.17 ÷ 6 = $3,794.86 [2014 average monthly earnings];
and (3) ($3,858.88 + $3,794.86) ÷ 2 [years] = $3,826.87 [estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ estimated gross lost wages in 2013
according to the following formula: [2013 average monthly earnings] × 4% × 4.5
[months] = [2013 total gross lost wages]. Applying this formula to the evidence yields
the following result: $3,858.88 × 4% × 4.5 = $694.60.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 using the following formula: [2014 actual earnings] × 4% = [2014 lost wages, first
half]. Applying this formula to the evidence yields the following result: $22,769.17 ×
4% = $910.77 [2014 lost wages, first half].
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
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monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,826.87 + (4% × $3,826.87) = $3,979.94
[estimated monthly earnings (R1)]; (2) $3,979.94 + (3% × $3,979.94) = $4,099.34
[estimated monthly earnings (R1-R2)]; and (3) $4,099.34 × 4.5 [months] = $18,447.03
[2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $910.77 + $18,447.03 = $19,357.80
[2014 total projected gross lost wages].
2015 Projected Gross Lost Wages:
2015 First Half Losses: The ALJ estimated gross lost wages in the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to the evidence
yields the following result: $4,099.34 × 6 [months] = $24,596.04 [2015 projected gross
lost wages, first half].
2015 Second Half Losses: The ALJ estimated gross lost wages in the second
half of 2015 using the following two formulas: (1) [estimated monthly earnings
(R1-R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $4,099.34 + (3% × $4,099.34) = $4,222.32;
and (2) $4,222.32 × 4.5 = $19,000.44 [2015 projected gross lost wages, second half].
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2015 Total Projected Gross Lost Wages: $24,596.04 + $19,000.44 =
$43,596.48 [2015 total projected gross lost wages].
2016 Projected Gross Lost Wages: The ALJ estimated lost wages in 2016 using
the following formula: [estimated monthly earnings (R1-R3)] × [#] [months] = [2016
projected gross lost wages]. Applying this formula to the evidence yields the following
result: $4,222.32 × 10.5 [months] = $44,334.36 [2016 projected gross lost wages].
2017 Projected Gross Lost Wages: The ALJ estimated lost wages in 2017 using
the following formula: [estimated monthly earnings (R1-R3)] × [#] [months] = [2017
projected gross lost wages]. Applying this formula to the evidence yields the following
result: $4,222.32 × 10.5 [months] = $44,334.36 [2017 projected gross lost wages].
2018 Projected Gross Lost Wages: The ALJ estimated lost wages in 2018 using
the following two formulas: (1) [estimated monthly earnings (R1-R3)] + (5.67% ×
[estimated monthly earnings (R1-R3)]) = [estimated monthly earnings (R1- R4)]; and
(2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018 projected gross lost
wages]. Applying these formulas to the evidence yields the following results: (1)
$4,222.32 + (5.67% × $4,222.32) = $4,461.73 [estimated monthly earnings (R1- R4)];
and (2) $4,461.73 × 10.5 [months] = $46,848.12 [2018 projected gross lost wages].
2019 Projected Gross Lost Wages: The ALJ estimated lost wages in 2019 using
the following formula: [estimated monthly earnings (R1-R4)] × [#] [months] = [2019
projected gross lost wages]. Applying this formula to the evidence yields the following
result: $4,461.73 × 10.5 [months] = $46,848.12 [2019 projected gross lost wages].
2020 Projected Gross Lost Wages: The ALJ estimated 2020 gross lost wages
as follows: [estimated monthly earnings (R1-R4)] × [#] [months] = [2020 projected
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gross lost wages]. Applying this formula to the evidence yields the following result:
$4,461.73 × 10.5 [months] = $46,848.12 [2020 projected gross lost wages].
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows D.C.’s projected gross lost wages, her income from
subsequent employment, and the resulting net difference between those two amounts,
from 2013 through 2020.
Year: 	Projected Gross Lost
Wages:
Alternative Income: 	Net Lost
Wages:
2013 	$694.60 	N/A38 	$694.60
2014 	$19,357.80 	No offset income 	$19,357.80
2015 	$43,596.48 	$22,465.64 (Anaheim UHSD) 	$21,130.84
2016 	$44,334.36 	$35,697.06 (Anaheim UHSD) 	$8.637.30
2017 	$44,334.36 	$39,505.05 (Anaheim UHSD) 	$4,829.31
2018 	$46,848.12 	$39,095.99 (Anaheim UHSD) 	$7,752.13
2019 	$46,848.12 	$43,922.18 (Anaheim UHSD) 	$2,925.94
202039 	$46,848.12 	$34,949.43 (Anaheim UHSD) +
$5,130 (Lux Bus) = $40,079.43
$6,768.69
38 The 2013 losses come from missing a unit-wide wage increase that was
retroactive to July 1, 2013, but paid out to the bargaining unit in 2014, after the layoff.
Hence, none of the drivers were able to mitigate that loss.
39 The record includes less evidence regarding D.C.’s 2020 income compared
to other years, which is unsurprising given that the compliance hearing took place in
2020. The ALJ reasonably estimated her 2020 income from Anaheim UHSD. First, the
ALJ looked at the prior year’s earnings and applied this formula: [2019 earnings] ÷
10.5 [months] = [2019 average monthly wages]. Thus, the ALJ calculated D.C.’s 2019
income from Anaheim UHSD as $43,922.18 ÷ 10.5 [months] = $4,183.06. The ALJ
next multiplied the 2019 monthly figure by three months to determine her estimated
wages from January through March 2020, before Anaheim UHSD reduced her hours
due to the pandemic. This calculation is as follows: $4,183.06 × 3 [months] =
$12,549.18 [estimated 2020 income (January to March)]. In March 2020, Anaheim
UHSD reduced D.C.’s weekly hours by 28.6 percent, from 35 to 25 hours. To calculate
wages after that time, the ALJ first reduced D.C.’s monthly average wages by 28.6
percent and then multiplied this reduced average by the 7.5 months remaining in the
estimated work year, as follows: (1) $4,183.06 – (28.6% × $4,183.06) = $2,986.70;
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Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2013 	$694.60 	7 	$340.35 	$1,034.95
2014 	$19,357.80 	7 	$9,485.32 	$28,843.12
2015 	$21,130.84 	6 	$8,874.95 	$30,005.79
2016 	$8,637.30 	5 	$3,023.05 	$11,660.35
2017 	$4,829.31 	4 	$1,352.21 	$6,181.52
2018 	$7,752.13 	3 	$1,627.95 	$9,380.08
2019 	$2,925.94 	2 	$409.63 	$3,335.57
2020 	$6,768.69 	1 	$473.81 	$7,242.50
Total 	$72,096.61 	$25,587.27 	$97,683.88
5. 	Lost Benefits
Neither party challenged the ALJ’s conclusion that D.C. has not claimed any
lost benefits.
6. 	Total Net Damages and Interest Through December 31, 2020
D.C.’s total net damages and interest through December 31, 2020, equals
$97,683.88.
B. M.G.
1. 	Pre-Layoff Employment History
M.G. worked as a District Bus Driver for approximately 10 years. The District
paid M.G. $35,957.05 in 2013 and $20,592.14 in 2014. She worked between 35 to 40
hours per week at the District in 2014.
and (2) $2,986.70 × 7.5 [months] = $22,400.25. Finally, adding $12,549.18 +
$22,400.25, the ALJ arrived at $34,949.43 as a reasonable estimate of D.C.’s
offsetting 2020 wages from Anaheim UHSD.
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2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
M.G. applied for unemployment benefits after receiving her layoff notice in June
2014. M.G. received $10,296 in unemployment benefits in 2014.40
In 2014, M.G. worked as an independent contractor for A-C Motorcoach, a
private bus company. That year, M.G. earned $8,897.50, according to her 2014 A-C
Motorcoach Form 1099-MISC. M.G. also worked as an independent contractor for
Star-Dust Tours in 2014, earning $1,701 according to her Star-Dust Tours Form
1099- MISC. Neither of these entities made pension contributions on her behalf.
M.G. did not continue driving for either A-C Motorcoach or Star-Dust Tours in
2015. According to her 2015 Form 1099-G from EDD, M.G. received $858 in 2015
unemployment benefits. That year, Tobinworld hired her as a school bus driver, and
Tobinworld paid her $7,085.82 in 2015 gross wages, according to her Form W-2. M.G.
also worked as an independent contractor for Uber and Lyft that year. She earned
$1,732.38 from Uber in 2015, according to a Form 1099-K from an Uber subsidiary.
She received $2,095.45 from Lyft, according to information from her Lyft app. None of
these entities made pension contributions on her behalf.
M.G. injured herself while working for Tobinworld in late May 2015, and she
was unable to work for the rest of the year and for all of 2016. CSEA does not claim
any lost wages for M.G. during this time, and we express no opinion on that issue.
M.G. filed a claim for workers’ compensation benefits and received $13,681.43 in
disability benefits from December 2015 to November 2016.
40 Records from EDD bear the name “M.A.” due to a change in M.G.’s marital
status. It is undisputed that these documents refer to M.G..
71

In 2017, M.G. applied for driver positions at Whittier Union High School District
and Long Beach Transit. In 2018, she applied for positions at Los Angeles Unified
School District, Torrance Unified School District, and Newport-Mesa Unified School
District. She did not receive an offer for any of those positions.
Starting in or around March 2017, M.G. worked as an independent contractor
providing caregiver services to a client. She transported her client to hospital trips and
other appointments. She also ran errands and otherwise assisted her client. In 2017,
M.G. earned $18,399 as a caregiver, according to her testimony and the Form
1099- MISC her client sent her. In 2018, M.G. earned $19,337.50 as a caregiver
according to her testimony and the Form 1099-MISC from her client that year. M.G.
continued working as a caregiver until the end of October 2019. In 2019, M.G. earned
$7,274 working as a caregiver, as reported on her 2019 Form 1040. M.G.’s client did
not contribute to any pension on her behalf. M.G. did not work in 2020.
In October 2019, M.G. retired for purposes of CalPERS so that she could
supplement her income with pension distributions. She received a $9,079.84 gross
distribution in 2019 according to a CalPERS Form 1099-R that year.
We affirm the ALJ’s conclusion that M.G. acted consistently with the inclination
to work and be self-supporting through the end of October 2019, thereby satisfying her
duty to mitigate damages from the time of the layoff through October 2019.41 CSEA
41 As the ALJ pointed out, M.G. was under no obligation to remain in the same
industry when searching for work and, in any event, she took a caregiver position after
failing to obtain bus driver positions. Lack of job search success does not diminish
backpay. (Bellflower II, supra, PERB Order No. Ad-475, p. 10.)
72

does not claim that M.G. suffered damages from November 2019 through December
2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings using the
following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013 average
monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average monthly
earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $35,957.05 ÷ 10.5 = $3,424.48 [2013 average
monthly earnings]; (2) $20,592.14 ÷ 6 = $3,432.02 [2014 average monthly earnings];
and (3) ($3,424.48 + $3,432.02) ÷ 2 [years] = $3,428.25 [estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ calculated gross lost wages in 2013
using the following formula: [2013 average monthly earnings] × 4% × 4.5 [months] =
[2013 total gross lost wages]. Applying this formula to the evidence yields the following
result: $3,424.48 × 4% × 4.5 = $616.41.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated lost wages for the first half of 2014
using this formula: [2014 actual earnings] × 4% = [2014 gross lost wages, first half].
Applying this formula to the evidence yields this result: $20,592.14 × 4% = $823.69.
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
73

monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,428.25 + (4% × $3,428.25) = $3,565.38;
(2) $3,565.38 + (3% × $3,565.38) = $3,672.34 [estimated monthly earnings (R1-R2)];
and (3) $3,672.34 × 4.5 = $16,525.53 [2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $823.69 + $16,525.53 = $17,349.22.
2015 Projected Gross Lost Wages: For most employees, the ALJ projected
gross lost wages in 2015 in halves. However, M.G. has not claimed any lost earnings
for the final seven months of 2015. Thus, the ALJ projected her gross lost wages
using the following formula: [estimated monthly earnings (R1-R2)] × 5 [months] =
[2015 total projected gross lost wages]. Applying this formula to the evidence yields
the following result, which CSEA does not challenge: $3,672.34 × 5 = $18,361.70.
2016 Projected Lost Wages: M.G. does not claim any lost income in 2016.
2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2017 projected gross lost wages].42 Applying this formula to the evidence yields the
following result: $3,782.51 × 10.5 = $39,716.36.
2018 Projected Gross Lost Wages: The ALJ estimated 2018 gross lost wages
using the following two formulas: (1) [estimated monthly earnings (R1-R3)] + (5.67% ×
[estimated monthly earnings (R1-R3)]) = [estimated monthly earnings (R1- R4)]; and
42 Because M.G. did not claim losses in the final seven months of 2015 or any
of 2016, the ALJ had to update her 2017 projected wages in a slightly different manner
than the other drivers. Neither party excepted to the ALJ using the following formula:
$3,672.34 + (3% × $3,672.34) = $3,782.51 [estimated monthly earnings (R1-R3)].
74

(2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018 projected gross lost
wages]. Applying these formulas to the evidence yields the following results: (1)
$3,782.51 + (5.67% × $3,782.51) = $3,996.98 [estimated monthly earnings (R1-R4)];
and (2) $3,996.98 × 10.5 = $41,968.29 [2018 projected gross lost wages].
2019 Projected Gross Lost Wages: The ALJ estimated 2019 lost wages using
the following formula: [estimated monthly earnings (R1-R4)] × [#] [months] = [2019
projected gross lost wages]. M.G. worked until the end of October 2019, when she
ceased all attempts to mitigate damages. Thus, she was only in the labor force for 8.5
months that year, yielding the following result: $3,996.98 × 8.5 = $33,974.33.
2020 Projected Lost Wages: M.G. does not claim lost income in 2020.
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows M.G.’s projected gross lost wages, her income from
subsequent employment,43 and the resulting net difference between those two
amounts, from 2013 through 2020.
Year: 	Projected Gross Lost Wages: 	Alternative Income: 	Net Lost
Wages:
2013 	$616.41 	N/A 	$616.41
2014 	$17,349.22 	$1,701 (Star-Dust) + $8,897.50
(A-C Motorcoach) = $10,598.50
$6,750.72
2015 	$18,361.70 (From January to
May only. No claim for losses
from June-December)
$7,085.82 (Tobinworld) +
$1,732.38 (Uber) + $2,095.45
(Lyft) = $10,913.65
$7,448.05
2016 	No claim for losses 	(did not work) 	$0.00
2017 	$39,716.36 	$18,399 (Caregiver) 	$21,317.66
2018 	$41,968.29 	$19,337.50 (Caregiver) 	$22,630.79
43 The ALJ wrongly included in M.G.’s offset income the 2019 pension
distributions that she had earned through her District employment before the 2014
layoff. (See Part II(C).) We have corrected this error.
75

76
2019 	$33,974.33 (Jan. to Oct. No
claim for Nov.-Dec.)
$7,274 (Caregiver) 	$26,700.33
2020 	No claim for losses 	(did not work) 	$0.00
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2013 	$616.41 	7 	$302.04 	$918.45
2014 	$6,750.72 	7 	$3,307.85 	$10,058.57
2015 	$7,448.05 	6 	$3,128.18 	$10,576.23
2016 	$0.00 	5 	$0.00 	$0.00
2017 	$21,317.66 	4 	$5,968.94 	$27,286.60
2018 	$22,630.79 	3 	$4,752.47 	$27,383.25
2019 	$26,700.33 	2 	$3,738.05 	$30,438.38
2020 	$0.00 	1 	$0.00 	$0.00
Total 	$85,463.96 	$21,197.53 	$106,661.48
5. 	Lost Benefits
M.G. makes no claim for lost medical benefits, but she does claim retirement
benefit losses. While M.G. was employed at the District, the District made CalPERS
pension contributions on her behalf. The District contributed $2,383.15 to M.G.’s
CalPERS plan in 2014 according to her District paycheck dated July 10, 2014. Her
subsequent employers did not contribute to a pension on her behalf.
The ALJ estimated lost CalPERS contributions via two steps. First, the ALJ
determined an average 2014 monthly contribution amount using this formula: [2014
total District contributions] ÷ 6 [months] = [average 2014 monthly contribution].
Applying this formula, the District’s average 2014 monthly contribution on M.G.’s
behalf was: $2,383.15 ÷ 6 = $397.19 [average 2014 monthly contribution]. Next, the
ALJ estimated lost contributions for each year as follows: ([average 2014 monthly
contribution] – [alternative monthly contribution made on employee’s behalf, if any]) ×

77
[#] [months] = [net lost contribution]. Although this formula undercounts contributions
because it does not account for wage growth and other factors leading to increased
contributions over time, CSEA has not challenged the formula. The following chart
shows the ALJ’s estimates for 2014-2020, using the above formula.
Year: 	Lost Monthly
Contribution
Amount:
Offset
Contributions:
Estimated
Months Worked:
Net Lost
Contributions:
2014 	$397.19 	$0.00 	4.5 	$1,787.36
2015 	$397.19 	$0.00 	5 	$1,985.95
2016 	No loss incurred 	$0.00 	0 	$0.00
2017 	$397.19 	$0.00 	10.5 	$4,170.50
2018 	$397.19 	$0.00 	10.5 	$4,170.50
2019 	$397.19 	$0.00 	8.5 	$3,376.12
2020 	No loss incurred 	$0.00 	0 	$0.00
Applying the same interest method used for wages, the following chart shows
M.G.’s 2014-2020 lost CalPERS contributions with interest calculations through
December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2014 	$1,787.36 	7 	$875.81 	$2,663.17
2015 	$1,985.95 	6 	$834.10 	$2,820.05
2016 	$0.00 	5 	$0.00 	$0.00
2017 	$4,170.50 	4 	$1,167.74 	$5,338.24
2018 	$4,170.50 	3 	$875.80 	$5,046.30
2019 	$3,376.12 	2 	$472.66 	$3,848.78
2020 	$0.00 	1 	$0.00 	$0.00
Total: 	$15,490.43 	$4,226.11 	$19,716.54
6. 	Total Net Damages and Interest Through December 31, 2020
M.G.’s total net damages and interest through December 31, 2020, equals
$106,661.48 + $19,716.54 = $126,378.02.

78
C. W.G.
1. 	Pre-Layoff Employment History
W.G. worked as a District Bus Driver for approximately 21 years. The District
paid W.G. $44,238.35 in 2013 and $27,978.46 in 2014. He worked for the District 35
to 40 hours per week in 2014.
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
After his layoff, W.G. applied for unemployment benefits. According to W.G.’s
2014 1099-G from EDD, he received $6,531 in unemployment benefits.
W.G. began working as an independent contractor for a private charter bus
company, Finish Line Charter. In 2014, W.G.’s income from Finish Line was
$2,583.75. W.G. also worked as truck driver at Rallie Logistics in 2014, earning
$5,092.98 that year.
W.G. continued working for Rallie Logistics in 2015, earning $16,834.08
according to his testimony and the year-to-date gross wages section of his Rallie
Logistics paycheck dated December 17, 2015. In April 2015, City of Long Beach hired
W.G. as a garbage truck driver. W.G. earned $28,427.80 in gross wages there
according to his testimony and his City of Long Beach Form W-2 that year. 44
44 It appears that during part of 2015, W.G. worked for City of Long Beach and
Rallie Logistics at the same time. If the record allowed us to estimate which part of his
Rallie Logistics income was a second job that he could have held while still a District
employee, we would not count that income as an offset. (NLRB v. Community Health
Services, supra, 812 F.3d at p. 777.) However, because the record does not allow us
to determine W.G.’s average monthly salary at Rallie Logistics, we cannot allocate
part of his Rallie Logistics earnings to the period in 2015 after he began working for
City of Long Beach. Accordingly, the full amount of W.G.’s Rallie Logistics and City of
Long Beach earnings for 2015 will offset gross backpay.

79
In 2016, W.G. continued working for City of Long Beach, which paid him
$48,439.34 that year. W.G. also worked for Rallie Logistics in 2016. Since W.G.’s City
of Long Beach position occupied approximately the same hours as he would have
worked for the District, the Rallie Logistics wages do not offset gross backpay for
2016. (NLRB v. Community Health Services, supra, 812 F.3d at p. 777.)
In 2017, W.G. continued working for City of Long Beach, but not Rallie
Logistics. City of Long Beach paid him $59,972.23 that year.
W.G. continued working for City of Long Beach in 2018 but stopped working
there in July 2018 to work as a City of Los Angeles bus driver. In 2018, City of Long
Beach paid him $37,495.95, while City of Los Angeles paid him $28,245.60.
In 2019, City of Los Angeles paid W.G. $106,435.43 in gross wages according
to a Form W-2.
W.G. continued working for City of Los Angeles until at least December 8,
2020, the date he testified at the compliance hearing. There is no reason to believe
that W.G. stopped working there before the end of 2020. In 2020, W.G. earned
$62,540.89 in gross wages as of October 24, 2020, according to the year-to-date
earnings section of his City of Los Angeles paycheck dated November 4, 2020.
We affirm the ALJ’s conclusion that W.G. at all times acted consistently with the
inclination to work and be self-supporting, thereby satisfying his duty to mitigate
damages from the time of the layoff until at least the end of 2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings using the
following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013 average

80
monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average monthly
earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $44,238.35 ÷ 10.5 = $4,213.18 [2013 average
monthly earnings]; (2) $27,978.46 ÷ 6 = $4,663.08 [2014 average monthly earnings];
and (3) ($4,213.18 + $4,663.08) ÷ 2 [years] = $4,438.13 [estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ calculated gross lost wages in 2013
using the following formula: [2013 average monthly earnings] × 4% × 4.5 [months] =
[2013 total gross lost wages]. Applying this formula to the evidence yields the following
result: $4,213.18 × 4% × 4.5 = $758.37.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 using the following formula: [2014 actual earnings] × 4% = [2014 lost wages, first
half]. Applying this formula to the evidence yields the following result: $27,978.46 ×
4% = $1,119.14.
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $4,438.13 + (4% × $4,438.13) = $4,615.66;

81
(2) $4,615.66 + (3% × $4,615.66) = $4,754.13 [estimated monthly earnings (R1-R2)];
and (3) $4,754.13 × 4.5 = $21,393.59 [2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $1,119.14 + $21,393.59 = $22,512.7.
2015 Projected Gross Lost Wages:
2015 First Half Losses: The ALJ estimated gross lost wages in the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to the evidence
yields the following result: $4,754.13 × 6 = $28,524.78.
2015 Second Half Losses: The ALJ estimated gross lost wages in the second
half of 2015 using the following two formulas: (1) [estimated monthly earnings
(R1- R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $4,754.13 + (3% × $4,754.13) = $4,896.75;
and (2) $4,896.75 × 4.5 = $22,035.38 [2015 projected gross lost wages, second half].
2015 Total Projected Gross Lost Wages: $28,524.78 + $22,035.38 =
$50,560.16.
2016 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2016 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2016 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,896.75 × 10.5 [months] = $51,415.88.
2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]

82
= [2017 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,896.75 × 10.5 [months] = $51,415.88.
2018 Projected Gross Lost Wages: The ALJ estimated 2018 gross lost wages
using the following two formulas: (1) [estimated monthly earnings (R1-R3)] + (5.67% ×
[estimated monthly earnings (R1-R3)]) = [estimated monthly earnings (R1- R4)]; and
(2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018 projected gross lost
wages]. Applying these formulas to the evidence yields the following results: (1)
$4,896.75 + (5.67% × $4,896.75) = $5,174.40 [estimated monthly earnings (R1-R4)];
and (2) $5,174.40 × 10.5 = $54,331.20 [2018 projected gross lost wages].
2019 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2019 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2019 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $5,174.40 × 10.5 = $54,331.20.
2020 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2020 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2020 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $5,174.40 × 10.5 = $54,331.20.
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows W.G.’s projected gross lost wages, his income from
subsequent employment, and the resulting net difference between those two amounts,
from 2013 through 2020.

83
Year: 	Projected Gross
Lost Wages:
Alternative Income: 	Net Lost Wages:
2013 	$758.37 	N/A 	$758.37
2014 	$22,512.73 	$2,583.75 (Finish Line) +
$5,092.98 (Rallie) = $7,676.73
$14,836
2015 	$50,560.16 	$28,427.80 (Long Beach) +
$16,834.08 (Rallie) = $45,261.88
$5,298.28
2016 	$51,415.88 	$48,439.34 (City of Long Beach) 	$2,976.54
2017 	$51,415.88 	$59,972.23 (City of Long Beach) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2018 	$54,331.20 	$37,495.95 (City of Long Beach)
+ $28,245.60 (City of Los
Angeles) = $65,741.55
$0.00 (Subsequent
earnings exceed
projected lost wages)
2019 	$54,331.20 	$106,435.43 (City of Los
Angeles)
$0.00 (Subsequent
earnings exceed
projected lost wages)
2020 	$54,331.20 	$62,540.89 (City of Los Angeles
as of 10/24/20)45
$0.00 (Subsequent
earnings exceed
projected lost wages)
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2013 	$758.37 	7 	$371.60 	$1,129.97
2014 	$14,836 	7 	$7,269.64 	$22,105.64
2015 	$5,298.28 	6 	$2,225.28 	$7,523.56
2016 	$2,976.54 	5 	$1,041.79 	$4,018.330.00
2017 	$0.00 	4 	$0.00 	$0.00
2018 	$0.00 	3 	$0.00 	$0.00
2019 	$0.00 	2 	$0.00 	$0.00
2020 	$0.00 	1 	$0.00 	$0.00
Total: 	$20,892.65 	$9,866.52 	$34,777.50
45 By the time W.G. received his paycheck dated October 24, 2020, he already
had earned sufficient 2020 income to exceed his projected District income that year. It
is therefore unnecessary to estimate W.G.’s full 2020 income.

84
5. 	Lost Benefits
a. 	Medical Benefit Losses
After the layoff, W.G. enrolled into the Consolidated Omnibus Budget
Reconciliation Act (COBRA) program to maintain the health benefits coverage he had
while employed at the District. W.G. enrolled in COBRA when his regular District
insurance would have run out.
While employed at the District, W.G.’s share of his medical premiums was only
$14.50 per two-week pay period. To keep approximately the same level of benefits
after the layoff, W.G. had to pay $534.34 per month between September 23, 2014,
and May 5, 2015—when his medical benefits coverage from City of Long Beach took
effect. However, for reasons the record does not reveal, W.G. makes no claim based
on any COBRA premium cost corresponding to February 2015. W.G. therefore has a
valid claim for medical benefit losses for eight of the nine months between September
2014 and May 2015. As shown in the following chart, the ALJ estimated his loss each
month as the cost of his COBRA benefit less the cost he would have paid for medical
benefits had he remained employed.
Year: 	Medical Benefit
Cost (COBRA):
Cost of District
Benefit:
Estimated
Months Worked:
Net Cost
Increase:
2014 	$535.34 	$29 	4 	$2,025.36
2015 	$535.34 	$29 	4 	$2,025.36
Applying the same interest method used for wages, the following chart shows
W.G.’s 2014-15 medical benefit losses, with interest through December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2014 	$2,025.36 	7 	$992.43 	$3,017.79
2015 	$2,025.36 	6 	$850.65 	$2,876.01
Total: 	$4,050.72 	$1,843.08 	$5,893.80

85
b. 	Retirement Benefit Losses
While W.G. was employed at the District, the District made CalPERS pension
contributions on his behalf. The District contributed $2,422.70 into W.G.’s CalPERS
pension plan in 2014 according to his testimony and his District paycheck dated June
10, 2014. Starting in April 2015, City of Long Beach began contributing to CalPERS on
his behalf.
The ALJ estimated lost CalPERS contributions via two steps. First, the ALJ
determined an average 2014 monthly contribution amount using this formula: [2014
total District contributions] ÷ 6 [months] = [average 2014 monthly contribution].
Applying this formula, the District’s average 2014 monthly contribution on W.G.’s
behalf was: $2,422.70 ÷ 6 = $403.78 [average monthly contribution]. Next, the ALJ
estimated lost contributions for each year as follows: ([average 2014 monthly
contribution] – [alternative monthly contribution made on employee’s behalf, if any]) ×
[#] [months] = [net lost contribution]. Although this formula undercounts contributions
because it does not account for wage growth and other factors leading to increased
contributions over time, CSEA has not challenged the formula.
Here, CSEA has only claimed that W.G. lost retirement benefits for the second
half of 2014 and the first three months of 2015, before he began working at City of
Long Beach. Although this approach likely undercounts losses because it does not
account for factors that would make the benefit less valuable at City of Long Beach
(including lesser pay in 2015 and 2016), CSEA accedes to this approach, and we
therefore do not disturb it. The following chart shows the ALJ’s estimates for the
second half of 2014 and first three months of 2015, using the above formula.

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Year: 	Lost Monthly
Contribution
Amount:
Offset
Contributions:
Estimated
Months Worked:
Net Lost
Contributions:
2014 	$403.78 	$0.00 	4.5 	$1,817.01
2015 	$403.78 	$0.00 	3 	$1,211.34
Applying the same interest method used for wages, the following chart shows
W.G.’s 2014-15 retirement losses, with interest through December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2014 	$1,817.01 	7 	$890.33 	$2,707.34
2015 	$1,211.34 	6 	$508.76 	$1,720.10
Total: 	$3,028.35 	$1,399.09 	$4,427.44
6. 	Total Net Damages and Interest Through December 31, 2020
W.G.’s total net damages and interest through December 31, 2020, equals
$34,777.50 + $5,893.80 + $4,427.44 = $45,098.74.
D. R.G.
1. 	Pre-Layoff Employment History
R.G. worked as a District Bus Driver for approximately 11 years. The District
paid R.G. $31,577 in 2013 and $22,202 in 2014. She worked for the District
approximately 35 hours per week in 2014.46
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
After the District laid her off, R.G. applied for unemployment benefits. She
reported receiving $2,352 in unemployment benefits on her 2014 Form 1040.
R.G. applied for bus driving jobs at multiple employers, including City of
Commerce, Baldwin Park Unified School District, Bassett USD, Hacienda La Puente
46 R.G. had $5,614 in 2014 rental income. Because she had the rental property
when she worked for the District, this income does not offset her losses.

87
Unified School District, Walnut Valley Unified School District, and West Covina School
District. City of Commerce hired her in August 2014. R.G. also worked as an
independent contractor for a charter bus company called Transit Systems in 2014, and
on December 1, 2014, Bassett USD hired R.G. as a bus driver. R.G. earned $14,680
in 2014 gross wages from City of Commerce and $3,191 in 2014 income from Transit
Systems, as she reported on her 2014 Form 1040 and confirmed in her testimony.
R.G. earned $2,620.46 in 2014 wages from Bassett USD.47
R.G. continued working for both City of Commerce and Bassett USD from 2015
through most of 2019. She earned $21,033 in 2015 wages from City of Commerce,
while Bassett USD paid her $46,107.99 in 2015 wages. In 2016, City of Commerce
paid R.G. $21,612.22 in gross wages, while Bassett USD paid her $45,677.27. In
2017, City of Commerce paid R.G. $14,583.10 in gross wages, while Bassett USD
paid her $49,447.85. In 2018, R.G. earned $12,730.05 in gross wages from City of
Commerce, while Bassett USD paid her $61,075.55 in gross wages. In 2019, R.G.
earned $13,602.85 in gross wages from City of Commerce, while Bassett USD paid
her $71,490.17 in gross wages. R.G. resigned from City of Commerce around
November 2019.
R.G. continued working for Bassett USD for part of 2020. She earned
$18,591.25 there in 2020, according to her testimony and the year-to-date earnings
section of her Bassett USD paycheck dated March 10, 2020. She left Bassett USD to
47 The findings as to R.G.’s income from Bassett USD and City of Commerce
comes from those employers’ pay records, as well as from R.G.’s testimony and her
tax returns.

88
work for Centralia Unified School District (Centralia USD) that year. Centralia USD
paid R.G. $50,268.69 in gross 2020 wages as of October 31, 2020, according to her
testimony and her Centralia USD paycheck dated November 10, 2020.
We affirm the ALJ’s conclusion that R.G. at all times acted consistently with the
inclination to work and be self-supporting, thereby satisfying her duty to mitigate
damages from the time of the layoff until at least the end of 2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings using the
following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013 average
monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average monthly
earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $31,577 ÷ 10.5 = $3,007.33 [2013 average
monthly earnings]; (2) $22,202 ÷ 6 = $3,700.33 [2014 average monthly earnings]; and
(3) ($3,007.33 + $3,700.33) ÷ 2 [years] = $3,353.83 [estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ calculated gross lost wages in 2013
using the following formula: [2013 average monthly earnings] × 4% × 4.5 [months] =
[2013 total gross lost wages]. Applying this formula to the evidence yields the following
result: $3,007.33 × 4% × 4.5 = $541.32.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 using the following formula: [2014 actual earnings] × 4% = [2014 gross lost

89
wages, first half]. Applying this formula to the evidence yields the following result:
$22,202 × 4% = $888.08 [2014 gross lost wages, first half].
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,353.83 + (4% × $3,353.83) = $3,487.98;
(2) $3,487.98 + (3% × $3,487.98) = $3,592.62 [estimated monthly earnings (R1-R2)];
and (3) $3,592.62 × 4.5 = $16,166.79 [2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $888.08 + $16,166.79 = $17,054.87.
2015 Projected Gross Lost Wages:
2015 First Half Losses: The ALJ estimated gross lost wages in the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to the evidence
yields the following result: $3,592.62 × 6 = $21,555.72.
2015 Second Half Losses: The ALJ estimated gross lost wages in the second
half of 2015 using the following two formulas: (1) [estimated monthly earnings
(R1- R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the

90
evidence yields the following results: (1) $3,592.62 + (3% × $3,592.62) = $3,700.40;
and (2) $3,700.40 × 4.5 = $16,651.80 [2015 projected gross lost wages, second half].
2015 Total Projected Gross Lost Wages: $21,555.72 + $16,651.80 =
$38,207.52.
2016 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2016 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2016 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,700.40 × 10.5 = $38,854.20.
2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2017 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,700.40 × 10.5 = $38,854.20.
2018 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2018 using the following two formulas: (1) [estimated monthly earnings (R1-R3)] +
(5.67% × [estimated monthly earnings (R1-R3)]) = [estimated monthly earnings
(R1- R4)]; and (2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018
projected gross lost wages]. Applying these formulas to the evidence yields the
following results: (1) $3,700.40 + (5.67% × $3,700.40) = $3,910.21 [estimated monthly
earnings (R1-R4)]; and (2) $3,910.21 × 10.5 = $41,057.21 [2018 projected gross lost
wages].
2019 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2019 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]

91
= [2019 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,910.21 × 10.5 = $41,057.21.
2020 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2020 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2020 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,910.21 × 10.5 = $41,057.21.
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows R.G.’s projected gross lost wages, her income from
subsequent employment, and the resulting net difference between those two amounts,
from 2013 through 2020.
Year: 	Projected
Gross Lost
Wages:
Alternative Income: 	Net Lost Wages:
2013 	$541.32 	N/A 	$541.32
2014 	$17,054.87 	$14,680 (City of Commerce) + $3,191
(Transit Systems) + $2,620.46
(Bassett USD) = $20,491.46
$0.00 (Subsequent
earnings exceed
projected lost wages)
2015 	$38,207.52 	$21,033 (City of Commerce) +
$46,107.99 (Bassett USD) =
$67,140.99
$0.00 (Subsequent
earnings exceed
projected lost wages)
2016 	$38,854.20 	$21,612.22 (City of Commerce) +
$45,677.27 (Bassett USD) =
$67,289.49
$0.00 (Subsequent
earnings exceed
projected lost wages)
2017 	$38,854.20 	$14,583.10 (City of Commerce) +
$49,447.85 (Bassett USD) =
$64,030.95
$0.00 (Subsequent
earnings exceed
projected lost wages)
2018 	$41,057.21 	$12,730.05 (City of Commerce) +
$61,075.55 (Bassett USD) =
$73,805.60
$0.00 (Subsequent
earnings exceed
projected lost wages)
2019 	$41,057.21 	$13,602.85 (City of Commerce) +
$71,490.17 (Bassett USD) =
$85,093.02
$0.00 (Subsequent
earnings exceed
projected lost wages)

92
2020 	$41,057.21 	$18,591.25 (Bassett USD as of
3/10/2020) + $50,268.69 (Centralia
USD as of 10/31/2020) = $68,859.9448
$0.00 (Subsequent
earnings exceed
projected lost wages)
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2013 	$541.32 	7 	$265.25 	$806.57
5. 	Lost Benefits
R.G. makes no claim for lost retirement benefits, but she does claim medical
benefit losses. While M.G. was employed at the District, she paid $30 for medical,
dental, and vision benefits for herself and her family every two weeks. After the layoff,
R.G. paid for medical benefits for herself and her family while she was employed at
Basset USD and Centralia USD. Her medical benefits at those employers were like
her benefits while she worked at the District, but at a higher cost. She had the same
benefits provider at all three employers.
R.G.’s medical benefit costs while she worked for Bassett USD varied from
month to month and from year to year. She requested and received a statement of her
costs over the course of her employment. According to that statement, R.G. paid
$566.16 for medical benefits in 2014. In 2015, she paid $3,642.65 for medical, dental,
and vision benefits. In 2016, she paid $3,084.55 for medical, dental, and vision
48 By the time R.G. received her paycheck dated October 31, 2020, she already
had earned sufficient 2020 income to exceed her projected District income that year. It
is therefore unnecessary to estimate R.G.’s full 2020 income.

93
benefits. In 2017, she paid $3,703.31 for medical, dental, and vision benefits. In 2018,
she paid $2,861.48 for medical, dental, and vision benefits.
At Centralia USD, R.G. had to pay $373.30 per month for medical benefits over
the course of approximately seven months.
The ALJ found that R.G. incurred medical benefit losses each year except
2019, as shown on the following chart.
Year: 	Medical Benefit Cost
(Bassett/Centralia):
Projected Cost
of District
Benefit:
Estimated
Months Worked:
Net Cost
Increase:
2014 	$566.16 (Bassett USD) 	$60 	1 	$506.16
2015 	$3,642.65 (Bassett USD) 	$600 	10 	$3,042.65
2016 	$3,084.55 (Bassett USD) 	$600 	10 	$2,484.55
2017 	$3,703.31 (Bassett USD) 	$600 	10 	$3,103.31
2018 	$2,861.48 (Bassett USD) 	$420 	7 	$2,441.48
2019 	$0.00 	N/A 	N/A 	$0.00
2020 	$2,565.87 (Centralia USD) 	$420 	7 	$2,145.87
Applying the same interest method used for wages, the following chart shows
R.G.’s 2014-2020 medical benefit losses with interest calculations through December
31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2014 	$506.16 	7 	$248.02 	$754.18
2015 	$3,042.65 	6 	$1,277.91 	$4,320.56
2016 	$2,484.55 	5 	$869.59 	$3,354.14
2017 	$3,103.31 	4 	$868.93 	$3,972.24
2018 	$2,441.48 	3 	$512.71 	$2,954.19
2019 	$0.00 	2 	$0.00 	$0.00
2020 	$2,145.87 	1 	$150.21 	$2,296.08
Total: 	$13,724.02 	$3,927.37 	$17,651.39

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6. 	Total Net Damages and Interest Through December 31, 2020
R.G.’s total net damages and interest through December 31, 2020, equals
$806.57 + $17,651.39 = $18,457.96.
E. T.H.
1. 	Pre-Layoff Employment History
T.H. worked as a District Bus Driver for approximately 11 years. The District
paid T.H. $30,710 in 2013 and $21,577.28 in 2014. She worked for the District
approximately 30 hours per week in 2014.
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
T.H. applied for unemployment benefits after receiving the layoff notice. She
reported $2,877 in unemployment benefits on her 2014 Form 1040.
T.H. applied for bus driver positions at multiple employers, including Bassett
USD, Fullerton Unified School District (Fullerton USD), Hacienda La Puente Unified
School District, Los Angeles Unified School District, Long Beach Transit, and Los
Alamitos Unified School District. Fullerton USD hired T.H. as a bus driver in
August 2014. T.H. did not separately report her wages from Fullerton USD on her
2014 Form 1040, but she did report total gross wages in the amount of $27,509. She
confirmed in her testimony that this amount was her total gross earnings from both the
District and Fullerton USD. Subtracting her 2014 District gross wages ($21,577.28)
from this total, the ALJ calculated that her Fullerton USD gross wages were $5,931.72

95
that year. T.H. also worked as an independent contractor for Finish Line Charter. Her
2014 net income there was $6,258 according to her 2014 Form 1040.49
T.H. continued working for Fullerton USD in 2015 but resigned in March to take
a bus driver position at Bassett USD. She reported $35,300 in total 2015 gross wages
on her 2015 Form 1040. She testified that this represented her total earnings from
both Fullerton USD and Bassett USD. T.H. also worked as an independent contractor
for Finish Line Charter in 2015. Her net income there was $2,829 according to her
testimony and her 2015 Form 1040.50 Bassett USD released T.H. while she was still
on probation. T.H. again applied for unemployment benefits and reported $1,323 in
benefits on her 2015 Form 1040.
In February 2016, Downey USD hired T.H. for a full-time bus driver position.
She earned $22,513 in 2016 gross wages from Downey USD.51 She also received
$1,399 in 2016 net income as an independent contractor for Finish Line Charter and
$5,164 in 2016 unemployment benefits.52
49 Because the record does not show when in 2014 T.H. performed work for
Finish Line Charter nor whether she worked approximately the same number of hours
per week at Fullerton USD as she did at the District, the full amount of T.H.’s Finish
Line Charter earnings for 2014 will offset gross backpay.
50 Because the record does not show when in 2015 T.H. performed work for
Finish Line Charter nor whether she worked approximately the same number of hours
per week at Fullerton USD or Bassett USD as she did at the District, the full amount of
T.H.’s Finish Line Charter earnings for 2015 will offset gross backpay.
51 All findings as to Downey USD income comes from Downey USD records.
52 Because the record does not show whether T.H.’s 2016 work for Finish Line
Charter overlapped with her full-time employment at Downey USD, the full amount of
T.H.’s Finish Line Charter earnings for 2016 will offset gross backpay.

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T.H. continued working for Downey USD in 2017, earning $33,037 in gross
wages. T.H. also worked as an independent contractor in 2017, for Finish Line
Charter, Lyft, and Uber Eats, earning $7,081 in gross independent contractor income,
which she reported on her 2017 Form 1040 and confirmed through her testimony.
However, because the Downey USD employment was full time, T.H.’s independent
contractor income does not offset gross backpay for 2017. (NLRB v. Community
Health Services, supra, 812 F.3d at p. 777.)
T.H. continued working for Downey USD in 2018, earning $39,320.18. T.H. also
worked for Finish Line Charter, Lyft, Uber Eats, and Postmates in 2018, earning
$8,725 in gross income from these sources. Because she worked for Downey USD full
time, T.H.’s independent contractor income does not offset gross backpay for 2018.
(NLRB v. Community Health Services, supra, 812 F.3d at p. 777.)
T.H. continued working for Downey USD in 2019, earning $42,724.59. Because
her Downey USD income exceeded what she would have earned at the District, T.H.
suffered no net loss in 2019 income.53
T.H. continued working for Downey USD in 2020, earning $36,776 in gross
wages as of November 16, 2020, according to her testimony and the year-to-date
earnings section of her paycheck dated November 24, 2020. CSEA’s calculations
53 T.H. continued driving for Lyft and Uber Eats as an independent contractor in
2019. She received $2,856.58 from Lyft and $2,342.77 from Uber Eats. This 2019
independent contractor income is immaterial because T.H.’s 2019 income from
Downey USD exceeded what she would have earned at the District that year. In any
event, T.H. earned the independent contractor income for work beyond her full-time
schedule at Downey USD, meaning it would not offset backpay. (NLRB v. Community
Health Services, supra, 812 F.3d at p. 777.)

97
show additional 2020 income of $3,988.65 for the remainder of 2020. This means that
T.H. suffered no net loss in 2020 income.
We affirm the ALJ’s conclusion that T.H. at all times acted consistently with the
inclination to work and be self-supporting, thereby satisfying her duty to mitigate
damages from the time of the layoff until at least the end of 2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings using the
following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013 average
monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average monthly
earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $30,710 ÷ 10.5 = $2,924.76 [2013 average
monthly earnings]; (2) $21,577.28 ÷ 6 = $3,596.21 [2014 average monthly earnings];
and (3) (2,924.76 + $3,596.21) ÷ 2 [years] = $3,260.49 [estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ calculated gross lost wages in 2013
using the following formula: [2013 average monthly earnings] × 4% × 4.5 [months] =
[2013 total gross lost wages]. Applying this formula to the evidence yields the following
result: $2,924.76 × 4% × 4.5 = $526.46.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 using the following formula: [2014 actual earnings] × 4% = [2014 lost wages, first
half]. Applying this formula to the evidence yields the following result: $21,577.28 ×
4% = $863.09.

98
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,260.49 + (4% × $3,260.49) = $3,390.91;
(2) $3,390.91 + (3% × $3,390.91) = $3,492.64 [estimated monthly earnings (R1-R2)];
and (3) $3,492.64 × 4.5 = $15,716.88 [2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $863.09 + $15,716.88 = $16,579.97.
2015 Projected Gross Lost Wages:
2015 First Half Losses: The ALJ estimated gross lost wages in the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to the evidence
yields the following result: $3,492.64 × 6 = $20,955.84.
2015 Second Half Losses: The ALJ estimated gross lost wages in the second
half of 2015 using the following two formulas: (1) [estimated monthly earnings
(R1- R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,492.64 + (3% × $3,492.64) = $3,597.42;
and (2) $3,597.42 × 4.5 = $16,188.39 [2015 projected gross lost wages, second half].

99
2015 Total Projected Gross Lost Wages: $20,955.84 + $16,188.39 =
$37,144.23.
2016 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2016 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2016 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,597.42 × 10.5 = $37,772.91.
2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2017 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,597.42 × 10.5 = $37,772.91.
2018 Projected Gross Lost Wages: The ALJ estimated 2018 gross lost wages
using the following two formulas: (1) [estimated monthly earnings (R1-R3)] + (5.67% ×
[estimated monthly earnings (R1-R3)]) = [estimated monthly earnings (R1- R4)]; and
(2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018 projected gross lost
wages]. Applying these formulas to the evidence yields the following results: (1)
$3,597.42 + (5.67% × $3,597.42) = $3,801.39 [estimated monthly earnings (R1-R4)];
and (2) $3,801.39 × 10.5 = $39,914.60 [2018 projected gross lost wages].
2019 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2019 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2019 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,801.39 × 10.5 = $39,914.60.
2020 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2020 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]

100
= [2020 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,801.39 × 10.5 = $39,914.60.
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows T.H.’s projected gross lost wages, her income from
subsequent employment, and the resulting net difference between those two amounts,
from 2013 through 2020.
Year: 	Projected Gross
Lost Wages:
Alternative Income: 	Net Lost Wages:
2013 	$526.46 	N/A 	$526.46
2014 	$16,579.97 	$5,931.72 (Fullerton USD) +
$6,258 (Finish Line) = $12,189.72
$4,390.25
2015 	$37,144.23 	$35,300 (Fullerton USD and
Bassett USD combined) + $2,829
(Finish Line) = $38,129
$0.00 (Subsequent
earnings exceed
projected lost wages)
2016 	$37,772.91 	$22,513 (Downey USD) + $1,399
(Finish Line) = 23,912
$13,860.91
2017 	$37,772.91 	$33,037 (Downey USD) 	$ 4,735.91
2018 	$39,914.60 	$39,320.18 (Downey USD) 	$ 594.42
2019 	$39,914.60 	$42,724.59 (Downey USD) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2020 	$39,914.60 	$36,776.00 (Downey USD as of
11/16/20) + $3,988.65 (additional
income per CSEA) = $40,764.65
$0.00 (Subsequent
earnings exceed
projected lost wages)
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.

101
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2013 	$526.46 	7 	$257.97 	$784.43
2014 	$4,390.25 	7 	$2,151.20 	$6,541.47
2015 	$0.00 	6 	$0.00 	$0.00
2016 	$13,860.91 	5 	$4,851.32 	$18,712.23
2017 	$4,735.91 	4 	$1,326.05 	$6,061.96
2018 	$594.42 	3 	$124.83 	$719.25
2019 	$0.00 	2 	$0.00 	$0.00
2020 	$0.00 	1 	$0.00 	$0.00
Total: 	$24,107.95 	$8,711.37 	$32,819.34
5. 	Lost Benefits
T.H. makes no claim for lost retirement benefits, but she does claim medical
benefit losses. While employed by the District, T.H. contributed $30 per half-month
period toward her medical, dental, and vision benefits plan for herself and her family.
Downey USD similarly provided medical benefits for T.H. and her family. Neither party
excepts to the following ALJ findings: (1) T.H.’s medical benefits provider was the
same at Downey USD as it had been at the District, but T.H. had to pay more for
medical benefits at Downey USD; (2) in 2016, T.H. paid $1,305.64 over seven months,
and in 2017 the cost was $1,659.78 over nine months; (3) T.H. paid $1,668.96 in
2018, and $1,683.48 in 2019, both over 9 months; and (4) in 2020, T.H. paid
$1,300.05 over 7.5 months. The ALJ thus found that T.H. incurred medical benefit
losses each year from 2016-2020, as shown in the following chart.
Year: 	Medical Benefit
Cost (Downey
USD):
Projected Cost of
District Benefit:
Estimated
Months Worked:
Net Cost
Increase:
2016 	$1,305.64 	$420 	7 	$885.64
2017 	$1,659.78 	$540 	9 	$1,119.78
2018 	$1,668.96 	$540 	9 	$1,128.96
2019 	$1,683.48 	$540 	9 	$1,143.48
2020 	$1,300.05 	$450 	7.5 	$850.05

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Applying the same interest method used for wages, the following chart shows
T.H.’s 2016-2020 medical benefit losses with interest calculations through December
31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2016 	$885.64 	5 	$309.97 	$1,195.61
2017 	$1,119.78 	4 	$313.54 	$1,433.32
2018 	$1,128.96 	3 	$237.08 	$1,366.04
2019 	$1,143.48 	2 	$160.09 	$1,303.57
2020 	$850.05 	1 	$59.50 	$909.55
Total: 	$5,127.91 	$1,080.18 	$6,208.09
6. 	Total Net Damages and Interest Through December 31, 2020
T.H.’s total net damages and interest through December 31, 2020, equals
$32,819.34 + $6,208.09 = $39,027.43.
F. N.H.
1. 	Pre-Layoff Employment History
N.H. worked as a District Bus Driver for approximately 26 years. The District
paid her $39,377.85 in 2013 and $28,053.49 in 2014. N.H. worked for the District
approximately 40 hours per week in 2014.
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
After her layoff, N.H. applied for unemployment benefits. Her 2014 Form 1099-
G from EDD shows that she received $11,250 in unemployment benefits.
In 2014, N.H. applied for work at City of Lakewood, First Transit, and Ladd
Corporation. She began driving a bus as an independent contractor for Ladd
Corporation in late 2014. However, she only performed work for one day in 2014 and
received income at Ladd Corporation’s daily rate of $110.

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N.H. continued working as an independent contractor for Ladd Corporation in
2015. She received $21,850 from the Ladd Corporation that year according to her
2015 Ladd Corporation Form 1099-MISC. That year, N.H. also began working as an
independent contractor for A-C Motorcoach. She received $936.50 from A-C
Motorcoach according to her A-C Motorcoach 2015 Form 1099-MISC. N.H. reported
$6,867 in expenses on her 2015 Form 1040, resulting in net income of $15,919.50 as
an independent contractor.54 According to her 2015 Form 1099-G from EDD, N.H.
received an additional $450 in unemployment benefits that year.
N.H. also retired for purposes of CalPERS in 2015, so that she could
supplement her income with pension distributions. She testified that she did not plan
to retire from CalPERS at that time and would not have done so had she remained
employed by the District. N.H. received a $13,877.79 gross distribution that year,
according to her testimony and her 2015 Form 1099-R from CalPERS.
N.H. continued working as an independent contractor for Ladd Corporation in
2016. She received $22,127.49 from the Ladd that year according to her 2016 Ladd
Corporation Form 1099-MISC. N.H. reported $7,176 in expenses that year,
54 As noted in Part II(C)(4), neither party excepted to the ALJ’s approach to
interim employment expenses, and we accordingly do not disturb the ALJ’s resulting
calculations. Nonetheless, consistent with King Soopers, Inc., supra, 364 NLRB 1153,
in future cases (including further proceedings in this case), compliance officers shall
award interim employment expenses in full, with interest, regardless of an employee’s
interim employment earnings. For example, under this approach, N.H. would recover
$6,867 in interim employment expenses for 2015, plus interest, while $15,919.50 in
independent contractor earnings would offset her backpay for that year.

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resulting in $14,951 in net income. N.H. received a $16,441.20 gross CalPERS
distribution that year according to a Form 1099-R from CalPERS.
N.H. continued working as an independent contractor for Ladd Corporation in
2017. She received $17,716 from Ladd that year according to a Form 1099-MISC. In
her 2017 Form 1040, N.H. reported incurring $7,440 in operating expenses, resulting
in a net income of $10,276. N.H. also received a $16,579.28 pension distribution
according to a 2017 CalPERS Form 1099-R.
N.H. continued working as an independent contractor for Ladd Corporation for
part of 2018. She received $8,644.33 from Ladd that year according to a Form 1099-
MISC. She incurred $4,572 in expenses as reported on her 2018 Form 1040,
Schedule C-EZ, resulting in a $4,072 net income. N.H. also received a $16,885.04
CalPERS distribution that year according to a 2018 CalPERS Form 1099-R.
N.H. stopped performing work for Ladd Corporation on May 31, 2018. N.H. was
unable to continue driving a school bus because her school bus driver’s license
expired, and she lacked the resources to renew it. N.H. testified that it would have cost
her $2,000 to hire an instructor for the training component of the licensing process,
which she could not afford. In addition, drivers must supply their own buses during the
driving examination component of the licensing process. Ladd Corporation declined
N.H.’s request to use one of their buses for the examination.55
55 Before the layoff, the District provided its Bus Drivers with the training and
equipment needed to maintain their bus driver’s licenses.

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N.H. applied for other jobs in 2018 including at City of Lakewood, Walmart,
WinCo, and Target. She searched for listings on the CalJOBS website as well as
Indeed.com. She did not receive an offer for any positions in 2018.
We affirm the ALJ’s conclusion that N.H. acted consistently with the inclination
to work and be self-supporting, thereby satisfying her duty to mitigate damages,
through 2018. N.H. does not claim losses in 2019 or 2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings using the
following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013 average
monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average monthly
earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $39,377.85 ÷ 10.5 = $3,750.27 [2013 average
monthly earnings]; (2) $28,053.49 ÷ 6 = $4,675.58 [2014 average monthly earnings];
and (3) ($3,750.27 + $4,675.58) ÷ 2 [years] = $4,212.93 [estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ calculated gross lost wages in 2013
using the following formula: [2013 average monthly earnings] × 4% × 4.5 [months] =
[2013 total gross lost wages]. Applying this formula to the evidence yields the following
result: $3,750.27 × 4% × 4.5 = $675.05.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 as follows: [2014 actual earnings] × 4% = [2014 lost wages, first half]. Applying
this formula to the evidence yields the following result: $28,053.49 × 4% = $1,122.14.

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2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $4,212.93 + (4% × $4,212.93) = $4,381.45;
(2) $4,381.45 + (3% × $4,381.45) = $4,512.89 [estimated monthly earnings (R1-R2)];
and (3) $4,512.89 × 4.5 = $20,308 [2014 projected second half gross lost wages].
2014 Total Projected Gross Lost Wages: $1,122.14 + $20,308 = $21,430.14.
2015 Projected Gross Lost Wages:
2015 First Half Losses: The ALJ estimated gross lost wages in the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to the evidence
yields the following result: $4,512.89 × 6 = $27,077.34.
2015 Second Half Losses: The ALJ estimated gross lost wages in the second
half of 2015 using the following two formulas: (1) [estimated monthly earnings
(R1- R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $4,512.89 + (3% × $4,512.89) = $4,648.28;
and (2) $4,648.28 × 4.5] = $20,917.26 [2015 projected gross lost wages, second half].
2015 Total Projected Lost Wages: $27,077.34 + $20,917.26 = $47,994.60.

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2016 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2016 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2016 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,648.28 × 10.5 = $48,806.94.
2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2017 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,648.28 × 10.5 = $48,806.94.
2018 Projected Gross Lost Wages: The ALJ estimated 2018 gross lost wages
using the following two formulas: (1) [estimated monthly earnings (R1-R3)] + (5.67% ×
[estimated monthly earnings (R1-R3)]) = [estimated monthly earnings (R1- R4)]; and
(2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018 projected gross lost
wages]. Applying these formulas to the evidence yields the following results: (1)
$4,648.28 + (5.67% × $4,648.28) = $4,911.84 [estimated monthly earnings (R1-R4)];
and (2) $4,911.84 × 10.5 = $51,574.32 [2018 projected gross lost wages].
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows N.H.’s projected gross lost wages, her income from
subsequent employment,56 and the resulting net difference between those two
amounts, from 2013 through 2020.
56 The ALJ wrongly included in N.H.’s offset income the 2015-2018 pension
distributions that she had earned through her District employment before the 2014
layoff. (See Part II(C).) We have corrected this error.

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Year: 	Projected Gross
Lost Wages:
Alternative Income: 	Net Lost
Wages:
2013 	$675.05 	N/A 	$675.05
2014 	$21,430.14 	$110 (Ladd Corp.) 	$21,320.14
2015 	$47,994.60 	($21,850 (Ladd Corp.) + $936.50 (A-C
Motorcoach)) - $6,867 (expenses) =
$15,919.50
$32,075.10
2016 	$48,806.94 	$22,127.49 (Ladd Corp.) - $7,176 (expenses)
= $14,951.49
$33,855.45
2017 	$48,806.94 	$17,716 (Ladd Corp.) - $7,440 (expenses) =
$10,276
$38,539.94
2018 	$51,574.32 	$8,644.33 (Ladd Corp.) - $4,572 (expenses)
= $4,072.33
$47.501.99
2019 	No loss claimed 	$0.00 	$0.00
2020 	No loss claimed 	$0.00 	$0.00
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
Year: 	Net Loss: 	Years Since Loss: 	7% Interest: 	Net Loss + 7%
Interest:
2013 	$675.05 	7 	$330.77 	$1,005.82
2014 	$21,320.14 	7 	$10,446.87 	$31,767.01
2015 	$32,075.10 	6 	$13,471.54 	$45,546.64
2016 	$33,855.45 	5 	$11,849.41 	$45,704.86
2017 	$38,539.94 	4 	$10,791.18 	$49,331.12
2018 	$47,501.99 	3 	$9,975.42 	$57,477.41
2019 	$0.00 	2 	$0.00 	$0.00
2020 	$0.00 	1 	$0.00 	$0.00
Total 	$173,967.67 	$56,865.19 	$230,832.86
5. 	Lost Benefits
N.H. makes no claim for lost medical benefits, but she does claim retirement
benefit losses. While N.H. was employed at the District, the District contributed to her
CalPERS pension. The District contributed $2,634 towards N.H.’s CalPERS

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plan in 2014 according to her paycheck dated June 25, 2014. Neither Ladd
Corporation nor A-C Motorcoach made pension contributions on N.H.’s behalf.
The ALJ estimated lost CalPERS contributions via two steps. First, the ALJ
determined an average 2014 monthly contribution amount using this formula: [2014
total District contributions] ÷ 6 [months] = [average 2014 monthly contribution].
Applying this formula, the District’s average 2014 monthly contribution on N.H.’s
behalf was: $2,634.35 ÷ 6 = $439.06 [average 2014 monthly contribution]. Next, the
ALJ estimated lost contributions for each year as follows: ([average 2014 monthly
contribution] – [alternative monthly contribution made on employee’s behalf, if any]) ×
[#] [months] = [net lost contribution]. Although this formula undercounts contributions
because it does not account for wage growth and other factors leading to increased
contributions over time, CSEA has not challenged the formula. The following chart
shows the ALJ’s estimates for 2014-2018, using the above formula.
Year: 	Lost Monthly
Contribution
Amount:
Offset
Contributions:
Estimated Months
Worked:
Net Lost
Contributions:
2014 	$439.06 	$0.00 	4.5 	$1,975.77
2015 	$439.06 	$0.00 	10.5 	$4,610.13
2016 	$439.06 	$0.00 	10.5 	$4,610.13
2017 	$439.06 	$0.00 	10.5 	$4,610.13
2018 	$439.06 	$0.00 	10.5 	$4,610.13
Applying the same interest method used for wages, the following chart shows
N.H.’s 2014-2020 lost CalPERS contributions with interest calculations through
December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2014 	$1,975.77 	7 	$968.13 	$2,943.90
2015 	$4,610.13 	6 	$1,936.25 	$6,546.38

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2016 	$4,610.13 	5 	$1,613.55 	$6,223.68
2017 	$4,610.13 	4 	$1,290.84 	$5,900.97
2018 	$4,610.13 	3 	$968.13 	$5,578.26
Total: 	$20,416.29 	$6,776.90 	$27,193.19
6. 	Total Net Damages and Interest Through December 31, 2020
N.H.’s total net damages and interest through December 31, 2020, equals:
$230,832.86 + $27,193.19 = $258,026.05.
G. E.Q.
1. 	Pre-Layoff Employment History
E.Q. worked as a District Bus Driver for approximately 13 years. The District
paid E.Q. $45,058.07 in 2013 and $20,886.95 in 2014. He worked for the District 35 to
40 hours per week in 2014.
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
After his layoff E.Q. applied for unemployment. According to his Form 1099-R
from EDD, E.Q. received $10,608 in unemployment benefits in 2014.
E.Q. applied for multiple driver jobs in 2014. Employers he applied to included:
Upland Unified School District (Upland USD), Ontario-Montclair Unified School District
(Ontario-Montclair USD), Saladino’s Food Service, Shamrock Food Service, First
Transit, MV Transportation, Domino’s Pizza Distribution Center, Coca- Cola,
Omnitrans, City of Ontario, FedEx Freight, and UPS. He did not receive an offer for
any of those positions in 2014.
E.Q. continued receiving unemployment benefits in 2015. According to his 2015
From 1099-G from EDD, he received $3,792 in 2015 unemployment benefits.
To supplement his income, E.Q. made an emergency withdrawal from the
CalPERS pension he earned working for the District. E.Q. testified that he needed

111
those funds to prevent his lender from foreclosing on the mortgage of his house. He
further testified that he would not have done so if the District had not laid him off. He
received a $57,290.16 distribution according to his 2015 CalPERS Form 1099-R.
E.Q. continued looking for work in 2015, including applying for jobs at Upland
USD and Ontario-Montclair USD. He did not receive an offer for either position, or for
any of the other positions he applied for in 2015.
E.Q. continued searching for work in 2016. He applied for driver positions at MV
Transportation, Students First Transportation, Coca-Cola, Domino’s, FedEx Freight,
San Bernardino Community Action, CalTrans, Saladino’s Food Services, Shamrock
Food Service, CDL Recruiting, Mt. San Antonio Community College District, and
Lollicup. In November 2016, Lollicup hired E.Q. as a driver. However, he only worked
there for two weeks before Lollicup released him. E.Q. earned $1,619.46 in gross
wages according to his 2016 Lollicup Form W-2. Later in 2016, E.Q. worked at
Domino’s, where he earned $4,738.28 according to his 2016 Domino’s Form W-2.
Tropicale Foods hired E.Q. as a truck driver in late 2016, and E.Q. worked
there continuously from January 2017 through at least the date he testified at the
compliance hearing. There is no reason to believe that E.Q. stopped working at
Tropicale before the end of 2020. Tropicale paid E.Q. $48,380.75 in 2017 wages,
$59,004.97 in 2018 wages, and $67,770.86 in 2019 wages. In 2020, Tropicale paid
E.Q. $54,893.22 as of October 24, 2020, according to the year-to-date gross wages
section of his paycheck dated October 30, 2020.
We affirm the ALJ’s conclusion that E.Q. at all times acted consistently with the
inclination to work and be self-supporting even though he remained unemployed

112
until November 2016. E.Q. thereby satisfied his duty to mitigate damages from the
time of the layoff until at least the end of 2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings using the
following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013 average
monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average monthly
earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $45,058.07 ÷ 10.5 [months] = $4,291.24
[2013 average monthly earnings]; (2) $20,866.95 ÷ 6 [months] = $3,477.83 [2014
average monthly earnings]; and (3) ($4,291.24 + 3,477.83) ÷ 2 [years] = $3,884.54
[estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ calculated gross lost wages in 2013
using the following formula: [2013 average monthly earnings] × 4% × 4.5 [months] =
[2013 total gross lost wages]. Applying this formula to the evidence yields the following
result: $4,291.24 × 4% × 4.5 = $722.42.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 as follows: [2014 actual earnings] × 4% = [2014 lost wages, first half]. Applying
this formula to the evidence yields the following result: $20,866.95 × 4% = $834.68.
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated

113
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,884.54 + (4% × 3,884.54) = $4,039.92;
(2) $4,039.92 + (3% × $4,039.92) = $4,161.12 [estimated monthly earnings (R1-R2)];
and (3) $4,161.12 × 4.5 = $18,725.04 [2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $834.68 + $18,725.04 = $19,559.72.
2015 Projected Gross Lost Wages:
2015 First Half Losses: The ALJ estimated gross lost wages in the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to the evidence
yields the following result: $4,161.12 × 6 = $24,966.72.
2015 Second Half Losses: The ALJ estimated gross lost wages in the second
half of 2015 using the following two formulas: (1) [estimated monthly earnings
(R1- R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $4,161.12 + (3% × $4,161.12) = $4,285.95;
and (2) $4,285.95 × 4.5 = $19,286.78 [2015 projected gross lost wages, second half].
2015 Total Projected Gross Lost Wages: $24,966.72 + $19,286.78 =
$44,253.50.
2016 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2016 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]

114
= [2016 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,285.95 × 10.5 = $45,002.48.
2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2017 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,285.95 × 10.5 = $45,002.48.
2018 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2018 using the following two formulas: (1) [estimated monthly earnings (R1-R3)] +
(5.67% × [estimated monthly earnings (R1-R3)]) = [estimated monthly earnings
(R1- R4)]; and (2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018
projected gross lost wages]. Applying these formulas to the evidence yields the
following results: (1) $4,285.95 + (5.67% × $4,285.95) = $4,528.96 [estimated monthly
earnings (R1-R4)]; and (2) $4,528.96 × 10.5 = $47,554.08 [2018 projected gross lost
wages].
2019 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2019 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2019 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,528.96 × 10.5 = $47,554.08.
2020 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2020 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2020 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,528.96 × 10.5 = $47,554.08.

115
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows E.Q.’s projected gross lost wages, his income from
subsequent employment,57 and the resulting net difference between those two
amounts, from 2013 through 2020.
Year: 	Projected Gross
Lost Wages:
Alternative Income: 	Net Lost Wages:
2013 	$722.42 	N/A 	$722.42
2014 	$19,559.72 	$0.00 	$19,559.72
2015 	$44,253.50 	$0.00 	$44,253.50
2016 	$45,002.48 	$4,738.28 (Domino’s) + $1,619.46
(Lollicup) = $6,357.74
$38,644.74
2017 	$45,002.48 	$48,380.75 (Tropicale Foods) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2018 	$47,554.08 	$59,004.97 (Tropicale Foods) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2019 	$47,554.08 	$67,770.86 (Tropicale Foods) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2020 	$47,554.08 	$54,893.22 (Tropicale Foods as of
10/24/20)58
$0.00 (Subsequent
earnings exceed
projected lost wages)
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
57 The ALJ wrongly included in E.Q.’s offset income the 2015 emergency
pension distribution that he had earned through his District employment before the
2014 layoff. (See Part II(C).) We have corrected this error.
58 By the time E.Q. received his paycheck dated October 24, 2020, he already
had earned sufficient 2020 income to exceed his projected District income that year. It
is therefore unnecessary to estimate his full 2020 income.

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Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2013 	$722.42 	7 	$353.99 	$1,076.41
2014 	$19,559.72 	7 	$9,584.26 	$29,143.98
2015 	$44,253.50 	6 	$18,586.47 	$62,839.97
2016 	$38,644.74 	5 	$13,525.66 	$52,170.40
2017 	$0.00 	4 	$0.00 	$0.00
2018 	$0.00 	3 	$0.00 	$0.00
2019 	$0.00 	2 	$0.00 	$0.00
2020 	$0.00 	1 	$0.00 	$0.00
Total: 	$103,180.38 	$42,050.38 	$145,230.76
5. 	Lost Benefits
a. 	Medical Benefit Losses
While he was working for the District, E.Q. contributed $30 per two-week pay
period for medical benefits for himself and his family. Tropicale Foods, in contrast,
charged E.Q. $263.54 per two-week pay period or $527.08 per month. E.Q. paid this
amount for 11 months between 2017 and 2018, but he stopped paying for medical
benefits after that because he could not afford it. CSEA does not challenge the ALJ’s
conclusion that E.Q. incurred medical benefit losses only in those 11 months, as
shown on the following chart.
Year: 	Medical Benefit
Cost (Tropicale):
Projected Cost of
District Benefit:
Estimated
Months Worked:
Net Cost
Increase:
2017 	$527.08 	$60 	7 	$3,269.56
2018 	$527.08 	$60 	4 	$1,868.32
Applying the same interest method used for wages, the following chart shows
E.Q.’s 2017-2018 medical benefit losses with interest calculations through December
31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2017 	$3,269.56 	4 	$915.48 	$4,185.04

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2018 	$1,868.32 	3 	$392.35 	$2,260.67
Total: 	$5,137.88 	$1,307.83 	$6,445.71
b. 	Retirement Benefit Losses
While E.Q. was employed at the District, the District made CalPERS pension
contributions on his behalf. The District contributed $2,368.04 into E.Q. ‘s CalPERS
pension plan in 2014 according to his District paycheck dated July 10, 2014. None of
E.Q.’s subsequent employers made contributions into any pension plan.
The ALJ estimated lost CalPERS contributions via two steps. First, the ALJ
determined an average 2014 monthly contribution amount using this formula: [2014
total District contributions] ÷ 6 [months] = [average 2014 monthly contribution].
Applying this formula, the District’s average 2014 monthly contribution on E.Q. behalf
was: $2,368.04 ÷ 6 = $394.67 [average monthly contribution]. Next, the ALJ estimated
lost contributions for each year as follows: ([average 2014 monthly contribution] –
[alternative monthly contribution made on employee’s behalf, if any]) × [#] [months] =
[net lost contribution]. Although this formula undercounts contributions because it does
not account for wage growth and other factors leading to increased contributions over
time, CSEA has not challenged the formula. The following chart shows the ALJ’s
estimates for 2014-2020, using the above formula.
Year: 	Lost Monthly
Contribution
Amount:
Offset
Contributions:
Estimated Months
Worked:
Net Lost
Contributions:
2014 	$394.67 	$0.00 	4.5 	$1,776.02
2015 	$394.67 	$0.00 	10.5 	$4,144.04
2016 	$394.67 	$0.00 	10.5 	$4,144.04
2017 	$394.67 	$0.00 	10.5 	$4,144.04
2018 	$394.67 	$0.00 	10.5 	$4,144.04
2019 	$394.67 	$0.00 	10.5 	$4,144.04

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2020 	$394.67 	$0.00 	10.5 	$4,144.04
Applying the same interest method used for wages, the following chart shows
E.Q.’s 2017-2018 medical benefit losses with interest calculations through December
31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2014 	$1,776.02 	7 	$870.25 	$2,646.27
2015 	$4,144.04 	6 	$1,740.50 	$5,884.54
2016 	$4,144.04 	5 	$1,450.41 	$5,594.45
2017 	$4,144.04 	4 	$1,160.33 	$5,304.37
2018 	$4,144.04 	3 	$870.25 	$5,014.29
2019 	$4,144.04 	2 	$580.17 	$4,724.21
2020 	$4,144.04 	1 	$290.08 	$4,434.12
Total: 	$26,640.26 	$6,961.99 	$33,602.25
6. 	Total Net Damages and Interest Through December 31, 2020
E.Q.’s total net damages and interest through December 31, 2021, equals
$145,230.76 + $6,445.71 + $33,602.25 = $185,278.72.
H. E.V.
1. 	Pre-Layoff Employment History
E.V. worked as a District Bus Driver for approximately 10 years. E.V.’s 2013
District gross wages were $33,048 according to her 2013 Form 1040. According to the
year-to-date taxable balances section of E.V.’s paycheck from the District dated June
25, 2014, she earned $22,340.50 working for the District in 2014. She worked for the
District 35 to 40 hours per week at in 2014.
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
After her layoff, E.V. applied for unemployment benefits. E.V. reported receiving
$2,909 in unemployment compensation on her 2014 Form 1040.

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In about August 2014, District Transportation Director Mark Toti told E.V. that
Hemet USD was hiring bus drivers, and he suggested that she apply. After E.V. did
so, Hemet USD hired her. Hemet USD paid E.V. $15,184.65 in 2014 according to her
Hemet USD paycheck dated December 30, 2014.59
E.V. continued working for Hemet USD until September 1, 2020. Hemet USD
paid E.V. $51,131.43 in 2015 wages, $42,957.70 in 2016 wages, $44,689.03 in 2017
wages, $48,110.01 in 2018 wages, and $60,881.51 in 2019 wages. CSEA does not
except to the ALJ’s finding that E.V. ceased all attempts to mitigate damages after
August 30, 2020. Her gross wages were $28,244.76 through that date according to the
year-to-date earnings section of her Hemet USD paycheck dated September 30, 2020.
We affirm the ALJ’s conclusion that E.V. acted consistently with the inclination
to work and be self-supporting though the end of August 2020, thereby satisfying her
duty to mitigate damages from the time of the layoff through August 2020. As noted
above, CSEA did not except to the ALJ’s determination that E.V. did not seek to
mitigate damages in the final four months of 2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings using the
following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013 average
monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average
59 E.V. also worked as an independent contractor for Star-Dust Tours in 2014
(earning $3,687) and 2015 (earning $319). However, as reported on her tax return,
E.V. had worked for Star-Dust Tours in 2013 as well (earning $5,371), while also
fulfilling her duties for the District. Therefore, her 2014-2015 Star-Dust Tours income
does not offset her projected lost wages.

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monthly earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $33,048 ÷ 10.5 = $3,147.43 [2013 average
monthly earnings]; (2) $22,340.50 ÷ 6 = $3,723.42 [2014 average monthly earnings];
and (3) ($3,147.43 + $3,723.42) ÷ 2 [years] = $3,435.43 [estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ calculated gross lost wages in 2013
using the following formula: [2013 average monthly earnings] × 4% × 4.5 [months] =
[2013 total gross lost wages]. Applying this formula to the evidence yields the following
result: $3,147.43 × 4% × 4.5 = $566.54.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 using the following formula: [2014 actual earnings] × 4% = [2014 lost wages, first
half]. Applying this formula to the evidence yields the following result: $22,340.50 ×
4% = $893.62.
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,435.43 + (4% × $3,435.43) = $3,572.85;

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(2) $3,572.85 + (3% × $3,572.85) = $3,680.04 [estimated monthly earnings (R1-R2)];
and (3) $3,680.04 × 4.5 = $16,560.18 [2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $893.62 + $16,560.18 = $17,453.80.
2015 Projected Gross Lost Wages:
2015 First Half Losses: The ALJ estimated gross lost wages in the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to the evidence
yields the following result: $3,680.04 × 6 = $22,080.24.
2015 Second Half Losses: The ALJ estimated gross lost wages in the second
half of 2015 using the following two formulas: (1) [estimated monthly earnings
(R1- R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,680.04 + (3% × $3,680.04) = $3,790.44;
and (2) $3,790.44 × 4.5 = $17,056.98 [2015 projected gross lost wages, second half].
2015 Total Projected Gross Lost Wages: $22,080.24 + $17,056.98 =
$39,137.22.
2016 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2016 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2016 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,790.44 × 10.5 = $39,799.62.
2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]

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= [2017 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $3,790.44 × 10.5 = $39,799.62.
2018 Projected Gross Lost Wages: The ALJ estimated lost wages in 2018 using
the following two formulas: (1) [estimated monthly earnings (R1-R3)] + (5.67% ×
[estimated monthly earnings (R1-R3)]) = [estimated monthly earnings (R1- R4)]; and
(2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018 projected gross lost
wages]. Applying these formulas to the evidence yields the following results: (1)
$3,790.44 + (5.67% × $3,790.44) = $4,005.36 [estimated monthly earnings (R1-R4)];
and (2) $4,005.36 × 10.5 = $42,056.28 [2018 projected gross lost wages].
2019 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2019 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2019 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,005.36 × 10.5 = $42,056.28.
2020 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2020 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2020 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,005.36 × 6.5 = $26,034.84.
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows E.V.’s projected gross lost wages, her income from
subsequent employment, and the resulting net difference between those two amounts,
from 2013 through 2020.
Year: 	Projected Gross Lost
Wages:
Alternative Income: 	Net Lost Wages:
2013 	$566.54 	N/A 	$566.54
2014 	$17,453.80 	$15,184.65 (Hemet USD) 	$2,269.15

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2015 	$39,137.22 	$51,131.43 (Hemet USD) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2016 	$39,799.62 	$42,957.70 (Hemet USD) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2017 	$39,799.62 	$44,689.03 (Hemet USD) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2018 	$42,056.28 	$48,110.01 (Hemet USD) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2019 	$42,056.18 	$60,881.51 (Hemet USD) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2020 	$26,034.84
(Mitigation efforts
stopped 9/1/20)
$28,244.76 (Hemet USD) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2013 	$566.54 	7 	$277.60 	$844.14
2014 	$2,269.15 	7 	$1,111.88 	$3,381.03
2015 	$0.00 	6 	$0.00 	$0.00
2016 	$0.00 	5 	$0.00 	$0.00
2017 	$0.00 	4 	$0.00 	$0.00
2018 	$0.00 	3 	$0.00 	$0.00
2019 	$0.00 	2 	$0.00 	$0.00
2020 	$0.00 	1 	$0.00 	$0.00
Total: 	$2,835.69 	$1,389.48 	$4,225.17
5. 	Lost Benefits
Neither party challenged the ALJ’s conclusion that E.V. has not claimed any
lost benefits.

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6. 	Total Net Damages and Interest Through December 31, 2020
E.V.’s total net damages and interest through December 31, 2020, equals
$4,225.17.
I. 	D.W.
1. 	Pre-Layoff Employment History
D.W. worked as a District Bus Driver for approximately 17 years. The District
paid her $38,543.99 in 2013 and $23,689.28 in 2014. She worked for the District
approximately 40 hours per week in 2014.
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
After receiving her layoff notice, D.W. applied for unemployment benefits. She
reported $3,281 in unemployment benefits on her 2014 Form 1040.
D.W. applied for bus driver jobs at Los Angeles International Airport, as well as
Long Beach Transit, which hired her in October 2014. D.W. earned $8,219.31 in gross
wages according to her 2014 Long Beach Transit Form W-2.
D.W. continued working for Long Beach Transit from 2015 through at least the
date she testified at the compliance hearing. There is no reason to believe that D.W.
stopped working at Long Beach Transit before the end of 2020. Long Beach Transit
paid D.W. $30,132.84 in 2015 wages, $31,483.95 in 2016 wages, $34,870.16 in 2017
wages, $42,405.34 in 2018 wages, and $50,194.84 in 2019 wages. D.W. earned
$50,524.88 in 2020 wages as of October 30, 2020, according to her Long Beach
Transit paycheck bearing that date.

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We affirm the ALJ’s conclusion that D.W. at all times acted consistently with the
inclination to work and be self-supporting, thereby satisfying her duty to mitigate
damages from the time of the layoff until at least the end of 2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: The ALJ estimated monthly earnings using the
following three formulas: (1) [2013 actual earnings] ÷ 10.5 [months] = [2013 average
monthly earnings]; (2) [2014 actual earnings] ÷ 6 [months] = [2014 average monthly
earnings]; and (3) ([2013 average monthly earnings] + [2014 average monthly
earnings]) ÷ 2 [years] = [estimated monthly earnings]. Applying these formulas to the
evidence yields the following results: (1) $38,543.99 ÷ 10.5 = $3,670.86 [2013 average
monthly earnings]; (2) $23,689.28 ÷ 6 = $3,948.21 [2014 average monthly earnings];
and (3) ($3,670.86 + $3,948.21) ÷ 2 [years] = $3,809.54 [estimated monthly earnings].
2013 Estimated Lost Wages: The ALJ calculated gross lost wages in 2013
using the following formula: [2013 average monthly earnings] × 4% × 4.5 [months] =
[2013 total gross lost wages]. Applying this formula to the evidence yields the following
result: $3,670.86 × 4% × 4.5 = $660.75.
2014 Projected Gross Lost Wages:
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 using the following formula: [2014 actual earnings] × 4% = [2014 lost wages, first
half]. Applying this formula to the evidence yields the following result: $23,689.28 ×
4% = $947.57.
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%

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× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; and (3) [estimated monthly earnings (R1-R2)] × [#]
[months] = [2014 gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $3,809.54 + (4% × 3,809.54) = $3,961.92; (2)
$3,961.92 + (3% × $3,961.92) = $4,080.78 [estimated monthly earnings (R1-R2)]; and
(3) $4,080.78 × 4.5 = $18,363.51 [2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $947.57 + $18,363.51 = $19,311.08.
2015 Projected Gross Lost Wages:
2015 First Half Losses: The ALJ estimated gross lost wages in the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to the evidence
yields the following result: $4,080.78 × 6 = $24,484.68.
2015 Second Half Losses: The ALJ estimated gross lost wages in the second
half of 2015 using the following two formulas: (1) [estimated monthly earnings
(R1- R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $4,080.78 + (3% × $4,080.78) = $4,203.20;
and (2) $4,203.20 × 4.5 = $18,914.40 [2015 projected gross lost wages, second half].
2015 Total Projected Gross Lost Wages: $24,484.68 + $18,914.40 =
$43,399.08.

127
2016 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2016 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2016 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,203.20 × 10.5 = $44,133.60.
2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2017 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,203.20 × 10.5 = $44,133.60.
2018 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2018 using the following two formulas: (1) [estimated monthly earnings (R1-R3)] +
(5.67% × [estimated monthly earnings (R1-R3)]) = [estimated monthly earnings
(R1- R4)]; and (2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018
projected gross lost wages]. Applying these formulas to the evidence yields the
following results: (1) $4,203.20 + (5.67% × $4,203.20) = $4,441.52 [estimated monthly
earnings (R1-R4)]; and (2) $4,441.52 × 10.5 = $46,635.96 [2018 projected gross lost
wages].
2019 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2019 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2019 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,441.52 × 10.5 = $46,635.96.
2020 Projected Gross Lost Wages: The ALJ estimated gross lost wages in
2020 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]

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= [2020 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $4,441.52 × 10.5 = $46,635.96.
4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows D.W.’s projected gross lost wages, her income from
subsequent employment, and the resulting net difference between those two amounts,
from 2013 through 2020.
Year: 	Projected Gross
Lost Wages:
Alternative Income: 	Net Lost Wages:
2013 	$660.75 	N/A 	$660.75
2014 	$19,311.08 	$8,219.31 (Long Beach Transit) 	$11,091.77
2015 	$43,399.08 	$30,132.84 (Long Beach Transit) 	$13,266.24
2016 	$44,133.60 	$31,483.95 (Long Beach Transit) 	$12,649.65
2017 	$44,133.60 	$34,870.16 (Long Beach Transit) 	$9,263.44
2018 	$46,635.96 	$42,405.34 (Long Beach Transit) 	$4,230.62
2019 	$46,635.96 	$50,194.84 (Long Beach Transit) 	$0.00 (Subsequent
earnings exceed
projected lost wages)
2020 	$46,635.96 	$50,524.88 (Long Beach Transit
as of 10/30/20)60
$0.00 (Subsequent
earnings exceed
projected lost wages)
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
Year: 	Net Loss: 	Years: 	7% Interest: 	Net Loss + 7% Interest:
2013 	$660.75 	7 	$323.77 	$984.54
2014 	$11,091.77 	7 	$5,434.97 	$16,526.74
2015 	$13,266.24 	6 	$5,571.82 	$18,838.06
2016 	$12,649.65 	5 	$4,427.38 	$17,077.03
2017 	$9,263.44 	4 	$2,593.76 	$11,857.20
60 By the time D.W. received her paycheck dated October 30, 2020, she already
had earned sufficient 2020 income to exceed her projected District income that year. It
is therefore unnecessary to estimate D.W.’s full 2020 income.

129
2018 	$4,230.62 	3 	$888.43 	$5,119.05
2019 	$0.00 	2 	$0.00 	$0.00
2020 	$0.00 	1 	$0.00 	$0.00
Total: 	$51,162.47 	$19,240.13 	$70,402.62
5. 	Lost Benefits
Neither party challenged the ALJ’s conclusion that D.W. has not claimed any
lost benefits.
6. 	Total Net Damages and Interest Through December 31, 2020
D.W.’s total net damages and interest through December 31, 2020, equals
$70,402.62.
J. 	S.B.
1. 	Pre-Layoff Employment History
S.B. worked as a district Bus Driver for approximately 29 years. Her 2013
District gross wages were $62,366.58 according to her District Form W-2 that year.
This includes time she spent from about January to August 2013 working as an Interim
Manager with an increase in pay over other drivers. Her 2014 District gross wages
were $29,732.42, according to her District Form W-2 that year. She worked for the
District approximately 40 hours per week in 2014.
2. 	Post-Layoff Mitigation Efforts and Subsequent Employment
After her layoff, S.B. applied for unemployment benefits. She reported on her
2014 Form 1040 that she received $6,179 in unemployment benefits in 2014.
In the summer of 2014, S.B. began working as an independent contractor for a
charter bus company called Transit Systems. She testified that she worked three days
per week for seven and one-half weeks. She further testified that she worked eight
hours per workday at a rate of $12 per hour. This equates to $2,160 in income.

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Long Beach Transit hired S.B. as a bus driver in October 2014, and she worked
there continuously until at least December 8, 2020, the date she testified at the
compliance hearing. There is no reason to believe that S.B. stopped working at Long
Beach Transit before the end of 2020. Long Beach Transit paid S.B. $4,005.50 in
2014 wages, $31,668.36 in 2015 wages, $32,909.27 in 2016 wages, $33,444 in 2017
wages, $43,464.88 in 2018 wages, and $51,017.92 in 2019 wages. In 2020, Long
Beach Transit paid S.B. $54,592.80 in wages as of November 13, 2020, according to
the year-to-date statement on her paycheck bearing that date.
In February 2016, S.B. retired for purposes of CalPERS so that she could
supplement her income with pension distributions. S.B. received a $33,692 distribution
from CalPERS in 2016, a $34,002 distribution from CalPERS in 2017, and
distributions of $34,002 from CalPERS in both 2018 and 2019. She did not testify
about whether she received or expected a CalPERS distribution in 2020, but neither
party challenged the ALJ’s conclusion that she likely received such a distribution.
We affirm the ALJ’s conclusion that S.B. at all times acted consistently with the
inclination to work and be self-supporting, thereby satisfying her duty to mitigate
damages from the time of the layoff until at least the end of 2020.
3. 	Gross Lost Wages Through December 31, 2020
Estimated Monthly Earnings: As discussed above, given the complexities of
S.B.’s calculation (since she worked part of 2013 as an Interim Manager), the ALJ
calculated S.B.’s estimated monthly earnings according to the following formula: [2014
actual earnings] ÷ 6 [months] = [estimated monthly earnings]. Applying this formula to
S.B.’s earnings yields the following result: $29,732.42 ÷ 6 = $4,955.40.

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2013 Estimated Lost Wages: Neither party excepted to the ALJ’s determination
to use the following four formulas because S.B. worked part of 2013 as an Interim
Manager: (1) [2013 actual earnings] ÷ 10.5 = [2013 average monthly earnings];
(2) [2013 average monthly earnings] × 4% × 0.5 [months] = [2013 ESY lost wages];
(3) [estimated monthly earnings] × 4% × 4 [months] = [2013 lost wages, September to
December]; and (4) [2013 ESY gross lost wages] + [2013 lost wages, September to
December] = [2013 total gross lost wages]. Applying these formulas to S.B.’s earnings
yields the following results: (1) $62,366.58 ÷ 10.5 = $5,939.67 [2013 average monthly
earnings]; (2) $5,939.67 × 4% × 0.5 = $118.79 [2013 ESY gross lost wages]; (3)
$4,955.40 × 4% × 4 = $792.86 [2013 lost wages September to December]; and (4)
$118.79 + $792.86 = $911.65 [2013 total gross lost wages].
2014 Projected Gross Lost Wages: As noted above, the ALJ estimated 2014
lost wages in two parts.
2014 First Half Losses: The ALJ estimated gross lost wages for the first half of
2014 using the following formula: [2014 actual earnings] × 4% = [2014 gross lost
wages, first half]. Applying this formula to the evidence yields the following result:
$29,732.42 × 4% = $1,189.30.
2014 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2014 using the following three formulas: (1) [estimated monthly earnings] + (4%
× [estimated monthly earnings]) = [estimated monthly earnings (R1)]; (2) [estimated
monthly earnings (R1)] + (3% × [estimated monthly earnings (R1)]) = [estimated
monthly earnings (R1-R2)]; (3) [estimated monthly earnings (R1-R2)] × [#] [months] =
[2014 gross lost wages, second half]. Applying these formulas to the evidence yields

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the following results: (1) $4,955.40 + (4% × $4,955.40) = $5,153.62; (2) $5,153.62 +
(3% × $5,153.62) = $5,308.23 [estimated monthly earnings (R1-R2)]; (3) $5,308.23 ×
4.5 = $23,887.04 [2014 projected gross lost wages, second half].
2014 Total Projected Gross Lost Wages: $1,189.30 + $23,887.04 = $25,076.34.
2015 Projected Gross Lost Wages: As noted above, the ALJ estimated 2015
lost wages in two parts.
2015 First Half Losses: The ALJ estimated gross lost wages for the first half of
2015 using the following formula: [estimated monthly earnings (R1-R2)] × [#] [months]
= [2015 projected gross lost wages, first half]. Applying this formula to S.B.’s earnings
evidence yielded the following results: $5,308.23 × 6 = $31,849.38.
2015 Second Half Losses: The ALJ estimated gross lost wages for the second
half of 2015 using the following three formulas: (1) [estimated monthly earnings
(R1- R2)] + (3% × [estimated monthly earnings (R1-R2)]) = [estimated monthly
earnings (R1-R3)]; and (2) [estimated monthly earnings (R1-R3)] × [#] [months] =
[2015 projected gross lost wages, second half]. Applying these formulas to the
evidence yields the following results: (1) $5,308.23 + (3% × $5,308.23) = $5,467.48;
and (2) $5,467.48 × 4.5 = $24,603.66 [2015 projected gross lost wages, second half].
2015 Total Projected Gross Lost Wages: $31,849.38 + $24,603.66 =
$56,453.04.
2016 Projected Gross Lost Wages: The ALJ estimated gross lost wages for
2016 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2016 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $5,467.48 × 10.5 = $57,408.54.

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2017 Projected Gross Lost Wages: The ALJ estimated gross lost wages for
2017 using the following formula: [estimated monthly earnings (R1-R3)] × [#] [months]
= [2017 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $5,467.48 × 10.5 = $57,408.54.
2018 Projected Gross Lost Wages: The ALJ estimated gross lost wages for
2018 using the following two formulas: (1) [estimated monthly earnings (R1-R3)] +
(5.67% × [estimated monthly earnings (R1-R3)]) = [estimated monthly earnings
(R1- R4)]; and (2) [estimated monthly earnings (R1-R4)] × [#] [months] = [2018
projected gross lost wages]. Applying these formulas to the evidence yields the
following results: (1) $5,467.48 + (5.67% × $5,467.48) = $5,777.49; and (2) $5,777.49
× 10.5 = $60,663.65 [2018 projected gross lost wages].
2019 Projected Gross Lost Wages The ALJ estimated gross lost wages for
2019 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2019 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $5,777.49 × 10.5 = $60,663.65.
2020 Projected Gross Lost Wages: The ALJ estimated gross lost wages for
2020 using the following formula: [estimated monthly earnings (R1-R4)] × [#] [months]
= [2020 projected gross lost wages]. Applying this formula to the evidence yields the
following result: $5,777.49 × 10.5 = $60,663.65.

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4. 	Net Lost Wages and Interest Through December 31, 2020
The following chart shows S.B.’s projected gross lost wages, her income from
subsequent employment,61 and the resulting net difference between those two
amounts, from 2013 through 2020.
Year: 	Projected Gross
Lost Wages:
Alternative Income: 	Projected Net
Lost Wages:
2013 	$911.65 	N/A 	$911.65
2014 	$25,076.34 	$2,160 (Transit Systems) + $4,005.50
(Long Beach Transit) = $6,165.50
$18,910.84
2015 	$56,453.04 	$31,668.36 (Long Beach Transit) 	$24,784.68
2016 	$57,408.54 	$32,909.27 (Long Beach Transit) 	$24,499.27
2017 	$57,408.54 	$33,444 (Long Beach Transit) 	$23,964.54
2018 	$60,663.65 	$43,464.88 (Long Beach Transit) 	$17,198.77
2019 	$60,663.65 	$51,017.92 (Long Beach Transit) 	$9,645.73
2020 	$60,663.65 	$54,592.80 (Long Beach Transit as of
11/13/20) + $5,538.00 (approximate Long
Beach Transit wages for remainder of
2020)62 = $60,130.80
$532.85
Applying the ALJ’s interest method yields the following chart showing interest
calculations through December 31, 2020.
61 The ALJ wrongly included in S.B.’s offset income the 2016-2020 pension
distributions that she had earned through her District employment before the 2014
layoff. (See Part II(C).) We have corrected this error.
62 The ALJ did not estimate S.B.’s approximate wages for the remainder of
2020, explaining that S.B.’s alternative income already exceeded what she would
have earned from the District in 2020. Because we have reversed the ALJ’s decision
to offset CalPERS distributions from previously earned service credit, we have filled
the gap in the ALJ’s calculations. At 40 hours per week, for 5 weeks, and $27.69 per
hour, we estimate that S.B. likely earned approximately $5,538.00 in additional gross
wages from Long Beach Transit during the remainder of 2020.

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Year: 	Net Wage Loss: 	Years
Since
Loss:
7% Interest: 	Net Loss + 7%
Interest:
2013 	$911.65 	7 	$446.71 	$1,358.36
2014 	$18,910.84 	7 	$9,266.31 	$28,177.15
2015 	$24,784.68 	6 	$10,409.57 	$35,194.25
2016 	$24,499.27 	5 	$8,574.74 	$33,074.01
2017 	$23,964.54 	4 	$6,710.07 	$30,674.61
2018 	$17,198.77 	3 	$3,611.74 	$20,810.51
2019 	$9,645.73 	2 	$1,350.40 	$10,996.13
2020 	$532.85 	1 	$37.30 	$570.15
Total 	$120,448.33 	$40,406.84 	$160,855.17
5. 	Lost Benefits
Neither party challenged the ALJ’s conclusion that S.B. has not claimed any
lost benefits.
6. 	Total Net Damages and Interest Through December 31, 2020
S.B.’s total net damages and interest through December 31, 2020, equals
$160,855.17.
ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire
record in the case, we conclude that Bellflower Unified School District has not
complied with Sections A.2, A.3, A.4, B.1, B.2, B.3, B.4, B.5, B.6, B.7, and B.8 of the
Board’s Order in Bellflower Unified School District (2017) PERB Decision No. 2544,
pp. 12-14. We further conclude that the District has not complied with the Board’s
order to reimburse California School Employees Association, Chapter 32 (CSEA) for
time spent opposing a frivolous reconsideration request, as set forth in Bellflower
Unified School District (2019) PERB Order No. Ad-475a, p. 6.

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Pursuant to Government Code section 3541.3, subdivisions (i) and (n), and
section 3541.5, subdivision (c), IT IS HEREBY ORDERED THAT:
A. 	This decision is a “final decision or order of the board in an unfair
practice case” within the meaning of Government Code section 3542, subdivision (b).
Within 10 days after this decision becomes final by virtue of the District having
declined to seek judicial review or having exhausted the judicial review process, the
District shall send to CSEA’s office at 2045 Lundy Avenue, San Jose, California,
95131 (or any substitute address that CSEA may designate), by overnight mail,
checks or money orders as specified below:
1. 	A payment to CSEA in the amount of $34,224.47, reflecting the
sum of (a) $29,112.47 as reimbursement for CSEA’s lost dues and interest through
December 31, 2020; and (b) $5,112, reflecting payment of the sanction award ordered
in Bellflower Unified School District (2019) PERB Order No. Ad-475a.
2. 	Separate payments to D.C., M.G., W.G., R.G., T.H., N.H., E.Q.,
E.V., D.W., and S.B. in the following amounts, reflecting net lost wages, benefits, and
interest through December 31, 2020:
a. 	D.C.: $97,683.88
b. 	M.G.: $126,378.02
c. 	W.G.: $45,098.74
d. 	R.G.: $18,457.96
e. 	T.H.: $39,027.43
f. 	N.H.: $258,026.05

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g. 	E.Q.: $185,278.72
h. 	E.V.: $4,225.17
i. 	D.W.: $70,402.62
j. 	S.B.: $160,855.17
B. 	The payments identified in paragraph A.2 shall be distributed as follows:
1. 	CSEA shall make diligent efforts to provide the payments
identified in paragraph A.2 to the specified employees or their assignees, designated
representatives, heirs, or estates. If such efforts are unsuccessful after 12 months,
CSEA shall contact the California State Controller’s Office and make diligent efforts to
report the payments as unclaimed property and eventually deliver the payments to the
Controller’s Office.
2. 	Should any check or other payment expire before it is cashed, the
District shall re-issue such payments if requested to do so at any time in the first two
years after the date this order becomes final.
C. 	The payments ordered in paragraphs A.1 and A.2 do not fully satisfy the
District’s obligations under the Board’s orders in Bellflower Unified School District
(2017) PERB Decision No. 2544 and Bellflower Unified School District (2019) PERB
Order No. Ad-475a. Absent a settlement, the ALJ shall convene further compliance
proceedings and develop a record as to the following topics:
1. 	What amount of further make-whole relief, plus interest, the
District owes CSEA and drivers for any losses incurred after December 31, 2020.

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2. 	The amount of make-whole relief, if any, needed to provide tax
neutralization relief consistent with this decision, plus interest at 7 percent per year on
such amounts, beginning on the estimated dates of any such increased tax payments.
3. 	The additional litigation expenses, plus interest at 7 percent per
year, that the District must pay CSEA for work reasonably performed since June 17,
2021, to secure payment of the sanction award ordered in Bellflower Unified School
District (2019) PERB Order No. Ad-475a.
4. 	The additional interest owed that has not yet been calculated,
including (a) interest owed on the District’s obligation to reimburse CSEA $5,112 in
attorney fees, accruing at 7 percent annually since CSEA filed its opposition to the
District’s reconsideration request on October 21, 2019; and (b) additional interest
owed to CSEA and drivers, reflecting interest accruing after December 31, 2020, on
damages CSEA and the drivers incurred through December 31, 2020.
5. 	What other obligations, if any, remain unfulfilled from the Board’s
Order in Bellflower Unified School District (2017) PERB Decision No. 2544, pp. 12-14,
including but not limited to: (a) whether, at any time after December 31, 2020, any of
the District’s duties were curtailed due to a lawful exercise of any rights not in conflict
with the extant orders in this case or any other subsequent events sufficient to curtail
such duties; (b) what reinstatement obligation, if any, the District continues to owe to
D.C., M.G., W.G., R.G., T.H., N.H., E.Q., E.V., D.W., and S.B.; and (c) what
obligations, if any, the District continues to owe regarding assigning drivers Extended

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School Year (ESY) work and ceasing to offer families $25 per day to transport
students to and from the ESY program.
D. 	Unless the Board directs otherwise, the ALJ shall issue a further
proposed compliance order as to the topics identified in paragraphs C.1 through C.5.
Members Shiners and Paulson joined in this Decision.