Downtown Toyota

National Labor Relations Board - Board DecisionsJul 22, 1987

284 N.L.R.B. 1160 (N.L.R.B. 1987)

1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lionel G. Sullivan and Ralph A. Fattore, a partner- ship d/b/a Downtown Toyota and Automobile Salemen's Union, Local 1095, affiliated with United Food and Commercial Workers Union, AFL-CIO. Cases 32-CA-6022, 32-CA-6238, and 32-CA-6345 22 July 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 11 February 1987 Administrative Law Judge Harold A. Kennedy issued the attached supplemen- tal decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, fmdings, 1 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Lionel G. Sullivan and Ralph A. Fattore, a partnership, d/b/a Downtown Toyota, Oakland, California, its officers, agents, successors, and assigns, shall pay Robert Stokes and Michael Heller the sums set out in the Order.2 1 In affirming the judge's findmg that no deduction from Michael Hell- er's backpay should be made for the 10-day vacation he took during his interim employment, we rely on the fact that he was not paid on a per diem basis by his interim employer and that the General Counsel's back- pay formula for Heller takes into account evidence that the practice of commissioned car salesmen working for both the Respondent and Hell- er's interim employer is to take unpaid time off on a random basis de- pending on existing workloads. 2 In accordance with our decision m New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out m the 1986 amend- ment to 26 U.S.0 Â§ 6621. Barbara D. Davison, for the General Counsel. Mark D. Jordan, of Santa Rosa, California, for the Re- spondent. David A. Rosenfeld, of San Francisco, California, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE HAROLD A. KENNEDY, Administrative Law Judge. On 18 September 1984 Administrative Law Judge Burton Litvack issued a decision holding that Lionel G. Sullivan and Ralph A. Fattore, a partnership d/b/a Downtown 284 NLRB No. 135 Toyota, had violated the National Labor Relations Act by, inter alia, discriminating against employees Michael Heller and Robert Stokes. On 30 September 1985 the Board adopted Judge Litvack's rulings, findings, conclu- sions, and recommended Order (276 NLRB 999). The Board's Order, now final, directed Downtown Toyota to make Heller and Stokes "whole for any loss of earnings suffered as a result of their respective discharges on Oc- tober 31, 1983."1 A dispute arose over the amounts of backpay due Stokes and Heller during the compliance stage. On 8 April 1986 the General Counsel issued a backpay specifi- cation requesting payment of $648 to Stokes and $10,301 to Heller. On 20 June 1986 the General Counsel issued an amended backpay specification claiming that the amount due Heller was $19,618 instead of $10,301. The General Counsel, in her brief filed following a 2-day hearing before me on 30 July and 1 August 1983 in Oak- land, California, has further revised the amount being sought for Heller, placing the amount due him at $19,776.17. The General Counsel points out that interest must be added to the amounts specified for each ($648 and $19,776.17) minus any tax withholding required by Federal and state laws. The General Counsel calculates her claim for Stokes' backpay as follows. 1. Respondent is liable for 6 days of backpay to Stokes, from 1 November 1983, the date following Stokes' discharge, to 7 November 1983, the date he was reinstated to his former position. 2. The daily average earnings in the 3-month period prior to his discharge amounted to $108 ($3898 for August 1983, $1813 for September 1983, and $4207 for October 1983). 3. Six days of backpay at the rate of $108 each amounts to $648. 4. Stokes had no interim earnings. The General Counsel calculates Heller's backpay claim of $19,776.17 as follows. 1. Respondent is liable for backpay to Heller com- mencing on 1 November 1983, the date following his dis- charge. Backpay liability was tolled on 7 November 1983, the date he was reinstated. Bacipay liability com- menced again on 22 November 1983, a date Respondent unlawfully failed to reemploy him Backpay liability to Heller ended on 17 October 1984, the date on which he declined a valid reinstatement offer.2 2. Heller is entitled to the same percentage of total commissions earned by the appropriate bargaining unit during the backpay period as the percentage of total commissions Heller earned while employed by Respond- ent from January through October 1983. 1 Respondent was also directed to reemploy Heller and make him whole for any lost earnings as a result of an unlawful refusal to rehire him. The General Counsel does not contend that Respondent refused to reemploy him as directed. 2 Respondent and the General Counsel agree Heller's backpay period consists of 336 days. DOWNTOWN TOYOTA 1161 3. Total unit commissions earned by the appropriate unit for the period January through October 1983 were $229,775.s 4. Heller's total commission earnings for the period January through October 1983 were $48,664. 5. Heller earned 21.18 percent of commission earnings of the appropriate unit during the January through Octo- ber 1983 backpay period. 6. Total commission earnings by the appropriate unit during the following backpay periods were as follows:4 November 1983 $39,560 December 1983 25,407 Jan.-March 1984 46,938 April-June 1984 97,391 July-Sept. 1984 117,921 October 1984 28,170 7. Gross backpay amounts are due Heller for the No- vember 1983 through October 1984 period on the basis that he is entitled to 21.18 percent of total unit commis- sions earned as follows: November 1983 s$4,190 December 1983 5,381 Total (4th Qtr. 1983) (9,571) 1st Qtr. 1984 9,941 2d Qtr. 20,627 3d Qtr. 24,976 October 1984 63,272 8. Interim earnings Heller received from Import Motors, Inc., 1945 Market Street, Concord, California, during his backpay periods and the resulting net pay due Heller are as follows: Five witnesses testifiedâ€”Andrew Young, a compliance officer in the employ of the General Counsel's Oakland Regional Office; Ralph Fattore, partner and general manager of Downtown Auto Center, 7 and the two dis- criminatees, Michael Heller and Robert Stokes. 3 Commission earnings of each of the unit members during this period is set forth in attachment I of the General Counsel's final backpay specifi- cation. 4 See attachment II of General Counsel's final amendment to her back- pay specification for a list of unit employees and amounts earned by each during these periods. 5 The $8379 figure is 21.18 percent of $39,560. The General Counsel pomts out that Heller is entitled to 15 days or one-half of the month of November 1983. 6 The $5966 figure is 21.18 percent of $28,170. The General Counsel points out that Hailer's backpay period ended on 17 October so that he would be entitled to seventeen-thirty-firsts of $5966 or $3272. Fattore explained that Downtown Toyota is but one of five new auto dealership franchises operated by Downtown Auto Center. Andrew Young, a compliance officer, prepared the original and amended backpay specifications in this case, using information supplied by Respondent. Young testi- fied that he asked for documents showing 1983 and 1984 earnings of salesmen working at Downtown Toyota, the unit involved in the underlying proceeding. Initially, Young was given individual personnel folders maintained for each of the employees said to be engaged in sales at Downtown Toyota. He reviewed the folders and, after calculating the monthly gross earnings of such employ- ees, determined Heller's percentage of the overall figures to be 15.1 percent. Respondent later supplied Young with another record of earnings, referred to as "blue book" or the "computerized payroll system." Young said he considered the computer payroll records a more reli- able measure so he "refmed" the figures. Heller's per- centage of the earnings was increased in the amended specification because, according to Young, the General Counsel had had incorrect information as to the number of sales employees in the unit.s Noting that there were a number of variables to be taken into account in figuring Heller's backpayâ€”some within his control (e.g., illness, Heller's diligence) and others were not (e.g., economic factors, availability of cars)â€” he "finally concluded that really the most reason- able measure was to compare his earnings against the earnings of others for the entire [9-month] period of his employment." Another reason to go with such compari- son for such period, according to Young, was that Re- spondent had provided a computer printout for those 9 months. Although he considered alternative theories in computing Heller's backpay, Heller said he decided to apply Heller's percentage on a quarterly basis because it was in accordance with the Board's policy and it would take into account the variety of factors that were likely involved. Young said discriminatee Heller had suggested that his backpay be calculated on the basis of what his brother Richard Heller, another Toyota salesman, had earned, but Young rejected it as giving an inflated figure for the reason that Richard probably had a "clear field" after Heller had left Respondent's employ. Young reject- ed other methods proposed by Respondent as being prej- udicial to Heller. On cross-examination Young explained that he thought that a daily computation was appropriate in the case of Stokes because there were no reliable sales figures for g Respondent initially agreed that the 16 salesmen listed on attachment I of the General Counsel's amended backpay specification were in the bargaining unit. Its counsel appeared to change his mind, contending that there were others who sold Toyotas for Respondent from other dealer- ships owned by Respondent who should be included m the unit. The record satisfies me that sales of Toyotas by salesmen working at other dealerships were unusual. Young indicated on cross-examination that an increase in the number of salesmen would not have caused him to change his percentage formu- la. There was so much "fluctuation," he said, adding: There was considerable turnover. Agam there was considerable dif- ference in the performance of different employees. I tried several methods comparing Mr. Heller's earnings with those of other em- ployees, with groups of employees and average employee earnings and so forth. . . . I couldn't come up with a consistent reasonable method ofâ€”of comparison short of total earnings. Young explained that he applied Heller's percentage of total eammgs in 1983 and applied them in the 1984 pay period, quarter by quarter. Period InterimEarnings Net Backpay 1983/4 (Nov. & Dec.) $812.83 $8,758.17 1984/1.. 15,742.09 0 1984/2 17,988.92 2,628.00 1984/3 16,586.00 8,390.00 Oct. 1984 5,467.00 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD him back to January and, further, there was such a short backpay period for him. Young said: "The longer the backpay period, the more problems arise. . . in trying to measure earnings during that period . . . because more variables have to be taken into account." Young was shown form 941 quarterly tax returns filed by Respondent and asked if he had attempted to recon- cile the figures appearing therein with those that he had taken from Respondent's bluebook. He said he had not because they had not been made available to him prior to the hearing. He stated that if he had been shown the quarterly returns and had noted discrepancies, he would have checked to see if different accounting periods ex- plained the differences. He said he might have used the tax returns if they had been furnished, but he had been told that Respondent's blue payroll book was Respond- ent's "best source."9 Young said he undertook to determine the number of salesmen working at Downtown Toyota in a given month. In computing Heller's earning loss he said he looked at total earnings of the unit as a whole rather than at individual sales of employees "who obviously performed at very different levels." "By looking at Mr. Heller's performance during the period of his employ- ment vis-a-vis the unit as a whole, mainly by seeing his earnings as a percentage of unit earnings, Iâ€”I have a measure of his actual performance." Young returned to the stand after Respondent present- ed its defense through its operating partner and general manager Ralph Fattore. Young explained that a docu- ment referred to by Fattore (R. Exh. 4) was a worksheet Young had prepared after making an initial review of Downtown Toyota's records of salesmen's earnings for 1983 and 1984. Young said he went through two boxes of personnel folders of about 39 different employees who had been identified to him by Respondent as persons who had worked at Downtown Toyota over the 2-year period. Young said he learned later, however, that some of the persons so identified did not in fact work at Downtown Toyota during the relevant period and there- fore had to be disregarded. Young acknowledged on cross-examination that he had found errors in the amount of earnings set forth on Respondent's Exhibit 4, but he was able to use the docu- ment to identify persons who properly belonged in the bargaining unit. Young said he then relied on Respond- ent's computer printout or bluebook in preparing the amended backpay specification once he learned of its ex- istence. The computer printout covered earnings only after October 1983, and there was no breakdown of earnings on a quarterly or monthly basis before that time. To es- During the lunch break on the first day of the trial the General Counsel undertook to compare figures contained in Respondent's quarter- ly returns and those taken from Respondent's (computerized) payroll book, relied on by the General Counsel. The General Counsel acknowl- edged that there was a significant difference in the case of salesman Albert. Compliance Officer Young explained, however, that Albert was not listed in the payroll book furnished lum. Young pointed out that you can post earnings different waysâ€”for ex- ample, when a deal is closed, when a car is delivered, or when payment is made. He said he thought he "would probably be okay" as long as he was using a "consistent source of records." tablish Heller's first three quarters of earnings in 1983 Young took the bluebook's year's total of $50,136.71 and subtracted from it the fourth quarter figure of $12,834.92, yielding a figure of $37,302. Heller's October 1983 earn- ings of $11,362 were then added, yielding a final figure of $48,664. Young said he realized this fmal figure con- flicted with Heller's reported annual earnings by $1,473.02, but he, nevertheless, disregarded the $1473.02 because he thought it was probably (1) for a period out- side of the backpay period and (2) reflected delayed pay- ment of money earned earlier in the year. (The printout for November 1983, when Heller worked only briefly for Respondent, indicated there were two sales that totaled $1473.02.) Heller said he thought he may have disadvan- taged Heller by leaving the $1473.02 out, but he "was trying to be consistent" in the way he was measuring earnings of other unit employees. Young said he thought he had sold Heller "short" by 20 percent of the $1473.02 (in computing Heller's percent at 21.18 percent) by leav- ing out such earnings, but he was "trying to simplify things." 1 Â° In any event, said Young, he wanted a sum- mary of earnings of Heller's and comparable employees during the January-October 1983 period; so he ignored the small amount of November 1983 earnings so as "to get a consistent reading of what earnings were by which I would come up with a percentage of Mr. Heller's earn- ings." Young said Respondent had made him immediately aware of Respondent's claim that Stokes "was over- drawn to the tune of $750." Young said he explained the Board's policy of not offsetting other debts against "backpay liabilities," but he ultimately saw a series of checks that were represented as being commmission earnings paid to Stokes in January 1984 against draws previously given him. At that time, according to Young, Respondent was only claiming an overdraw by Stokes in the amount of approximately $254. Finally, Young said he never had been shown Re- spondent's Exhibit 7, identified by Fattore during his tes- timony as a computer printout of Stokes' earnings for October 1983. Ralph Fattore testified that he has been the operating partner/general manager of the Downtown Auto Center since before January 1983. He oversees all operations of the Center, including parts, service, and sales. The Downtown Auto Center includes five new-car fran- chisesâ€”Toyota, Pontiac, GMC, SAAB, and Subaru. There are two new-car facilities, two used-car lots, and one truck lot, all located within a 11-block area in Oak- land." There is a sales manager at each location, and each reports to Fattore. The sales manager at Down- town Toyota is and has been Tony Caruso. According to Fattore, salesmen are compensated "basi- cally a monthly draw or twice a month draw against 10 Young consistently rejected Respondent's suggestion that the No- vember 1983 figure should be treated as interim earnings. " A salesman in Respondent's employ is able to sell a vehicle from any of its facilities, according to Fattore. "It happens consistently," he said. Michael Heller indicated later in his rebuttal testimony that a sale of a car other than a Toyota by a downtown Toyota salesman was unusual, however. DOWNTOWN TOYOTA 1163 commissions earned and then they are paid 30 percent of the payable gross." In 1983 a draw of $300 was given on the 1st and 15th of each month; "then in January of '84 we moved it up to $400 and that's a net draw." Accord- ing to Fattore, if a salesman did not have $400 in earned commissions, he would still get a "net draw of $400." Fattore said Stokes obtained advances "numerous times." Fattore said he recalled a particular time when Stokes asked for "an additional draw" following a "fisticuffs" incident. Fattore was shown Respondent's Exhibit 7, a docu- ment that he identified as a computer printout for Stokes for the month of October 1983. The document lists a column of figures, some of which are followed by a minus sign. The minus sign, according to Fattore, indi- cates a credit due Stokes whereas the absence of a minus sign indicates a debit was chargeable to Stokes. The $596.64 figure at the bottom of the column indicates, ac- cording to Fattore, that Stokes owed Respondent that amount at the end of the month. 12 It was Fattore's recollection that Stokes returned to work at Downtown Toyota in November 1983 and worked "on and off throughout the month." Fattore also thought Stokes had continued to work for Respondent in December 1983 and January 1984 selling cars. Fattore said Respondent paid Stokes commissions earned during the months of November, December, and January, but Stokes never settled up his $596.64 overdrawn account. Fattore thought "the girls in the office" failed to clear Stokes' account while he was still working for Respondent be- cause the computer system was new and they did not re- alize that "negatives mean a credit." Fattore indicated that commissions vary a great deal among salespersons and even for a given salesperson from month to month. He mentioned two specific rea- sons: VRAs (the voluntary restriction agreement, which "the Japanese imposed upon themselves") that restrict the number of cars available and the personality of the salesman. A salesman's commission is earned on a vehicle he has sold, according to Fattore, only when the customer "takes delivery of the car and all of the financing is com- pleted." Normally this would occur within 30 days after an order is taken, but it may take as long as 4 months to get an "exact car" for a customer. Financial statements of Downtown Auto Center for 1983 and 1984 (R. Exhs. 8 and 9) and other documents were shown Fattore during his direct examination. He said he had been unable to locate financial statements for 12 On cross-examination, Fattore identified R. Exh. 7 as an "EOM," an end-of-the-month report. Such reports, prepared for each month for each salesman, are printed out by computer. Fattore stated that his office man- ager could explain certain numbers and letters that appear on the print- out. "Now the way our payroll works is you get two draws during the month and then the 5th or 6th working day of the following month you get cleared out," Fattore explained. Fattore maintained that E0Ms Showed amounts earned by and paid to salesmen during a month but the "one ledger for the whole dealership would show what day m a month a salesman would be paid." The General Counsel's attorney asked about EOMS for month follow- ing October 1983. Respondent's counsel responded that he did not have them, but he offered to bring them in. Compliance Officer Young and discrimmatee Stokes both testified on rebuttal that they had not been previously shown R. Exh. 7. 4 months of 1983. He testified that the documents indi- cate that the Downtown Auto Center (not just Down- town Toyota) had employed 20 different salesmen at all of its locations during 1983. In April or March 1983 Re- spondent had 14 salesmen, but the number had increased somewhat by June or July in anticipation of arrival of imports." Fattore explained that Japanese cars are not subject to specific order from the factory. The salesman writes down the name of a car alongside a customer's name on a worksheet and staples the customer's deposit check to it. Shortly before the arrival of a shipment of cars, a printout is made available to the salesman who under- takes to match up the customer to a car in the shipment. On arrival of the car, the salesman calls the customer in and "in most occasions he has to up-sell or down-sell the customer due to the equipment." Fattore said, "A com- mission is earned when the customer pays all the down payment or pays cash for the car, a customer takes deliv- ery of the car, there's a report of sale on the window and a copy of his contract in hand." Fattore added that having the contract contemplates that "all financing or cash is in." When delivery is made after a salesman who took the order leaves Respondent's employment, he would "normally" split the commission with another salesman who oversees the delivery services (PDIs) on the car. Fattore disputed Compliance Officer Young's formula for computing Heller's backpay. Fattore said, "You have to use the whole period on a daily basis to come on up to what a man actually has earned." Fattore indicated that Toyota starts "shipping as many [cars] as they can physically" on 1 April when voluntary restrictions (VRAs) go into effect. Toyota's quota is soon filled, leaving a period when only a few cars are deliv- ered. Fattore indicated Heller was an eager salesman even in periods of a low inventory. Testifying on direct, Fattore said: In, fact, in September of '83 almost all of the sales- men had taken some time off because there was very few things going. Mike, I must take my hat off to him, was the smartest one of them all. He got the first week out of the way and came back and got the orders ready for October and November. Referring to Respondent's Exhibit 15, Fattore computed Heller's gross as follows: Heller's 1983 earningsâ€”$50,136.71â€”divided by 219 workdays equals $157.17 per day. 336 days (back- pay period) X $157.17 equals $52,809.12.14 13 Faftore testified that his business manager (Paul Maynard at one time and Darlene Caruso at another) was responsible for the preparation of the financial reports. Fattore said each automobile manufacturer has its own accounting system, and they do not always agree. Certain docu- ments making up R. Exhs. 8 and 9 for identification had to be changed for this reason because something went wrong with the computer. Fat- tore maintained, however, that changes were not "really important as far as the accuracy of the financial statement is concerned." 14 Respondent agrees with the General Counsel's figures for interim earnings for the first three quarters of 1984 and the month of October (respectively $15,742.09, $17,988, $16,586, and $5467). 1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fattore testified that there were "at least two more consistently and I think as high as four more" salesmen employed at Downtown Toyota in 1984. Fattore said he was not sure who the additional employees were but re- called encouraging Sales Manager Caruso to increase the sales force at Downtown Toyota and passing out more checks there." Fattore identified a "gross book," which he brought to the hearing. The gross book lists "day-by-day" sales of the Downtown Auto Center at all its locations and shows the deliveries of cars by type, name of customer, salesmen involved, his commission, whether there was a trade, and gross amounts earned on each transaction. Fattore also brought with him copies of certain pages from the gross book, which he said showed sales of cars in October, November, and December 1983 (R. Exh. 13). Attached to certain of the pages are cash register tape receipts that were run by "office girls" to summarize the amount of commissions shown in the gross book to have been paid to Heller. The tapes indicate Heller was paid $9198.02 in October 1983, $1663.08 in November 1983, and $2603.65 for December 1983. Fattore testified on cross-examination that although the gross book indicated that Heller earned $2603.65 in December 1983 he did not know, "sitting here," that a check was given to Heller for that amount. Fattore of- fered to go back to the office to check records to con- firm "Mike Heller's name on there or what I assume to be Mike Heller's name and see if it was really he that was involved." Asked how Respondent's gross book differentiated sales of Michael Heller, the discriminatee, from his brother, Richard Heller, who also sold Toyotas for Re- spondent, Fattore said Michael was referred to as Heller and Richard as either "Rich" or "R.H." Asked which Heller is referred to on the December 1983 listings in the gross book (when the discriminatee was no longer em- ployed by Respondent, see R. Exh. 13(1)), Fattore an- swered, "Well, I don't know." Fattore was of the view, nevertheless, that the sales so listed were attributable to Michael Heller. Fattore said, "Anytime I see Mike or Heller or M Heller I think of Mike Heller." As for the "R.H." listings on the same page, Fattore did not believe such designation could have referred to Roger Herato, another salesman, as he "was primarily in the Subaru" dealership. 6 Fattore agreed that Mike Heller was not in Respond- ent's employ in December 1983 but thought Heller had earned commissions on several cars delivered that month. Asked why the gross book showed full commis- sions being paid to a Heller for that month without any splits with other salesmen, Fattore assumed (admittedly a "speculation") that Sales Manager Tony Caruso may 15 R. Exh. 9(a) for identification, which lists the total number of sales- men at all dealerships at 20, was based on the identification of persons earning commissions. Fattore said that if a salesman had not earned a commission he would not have been listed. 16 Fattore stated that until September 1983, about the time when the computer system went into effect, salesmen received salary reports, with pink vouchers attached, that had been "hand posted." Such reports were also used for some months in 1984 when there were computer problems, but not for December 1983. Fattore offered to return to Respondent's fa- cility to see if there were computer runs for December 1983. have handled servicing of the cars for Heller in Decem- ber because "Tony always tried to protect Mike." Fat- tore said he could go back to the office and check on this. The General Counsel also cross-questioned Fattore concerning the large, blue computer printout book used by Compliance Officer Young in preparing Respondent's Exhibit 4, the compilation of sales commissions earned by salesmen January 1983 through October 1984. The figures appearing in the bluebook, Fattore said, "come from the actual deal when it gets to the office and it's punched into the machine." A jacket or folder is made up for each car and contains all "pertinent data," includ- ing gross profit, commission, name of customer, and salesman. If needed, Fattore said such jackets could be pulled on all December 1983 sales. Fattore agreed that the bluebook showed no earnings by Michael Heller in December 1983 and stated that he had no explanation for it. Again, Fattore said he could pull the folders and check if the sales were Rich Heller's." Robert L. Stokes testified that he was terminated by Respondent around noon on 31 October 1983 and was offered his job back about a week later, on 7 November. Stokes said his employment at Downtown Toyota went back before 1983. Stokes accepted reinstatement on 7 November and worked until the end of the month, at which time he was offered employment at Walnut Creek Datsun. Stokes said that after being terminated on 31 October he stopped off en route home to inquire about a job with a Chevrolet dealer in Alameda. The next day or so he telephoned Ron Good Toyota in Alameda and, in the following week, he contacted another automobile con- cern, Morris Landing. None of these firms was hiring. Stokes said he had worked over the years for numer- ous automobile dealers that normally pay their salesmen on a commission basis. Dealers do "not usually" allow 17 Respondent's counsel insisted at the trial that the General Counsel had ignored payment of $2603.65 to Heller in December 1983 (see R. Exh. 14). The General Counsel's attorney pomted out that Respondent's payroll records showed no earnings for Heller "past November." Re- spondent also claimed that the General Counsel's fourth quarterly figures for 1983 understated Heller's earnings by $250 due to "SPIFS" ("extra Income that don't show up a gross book"). Respondent claimed that as a result the General Counsel was maintaining that Heller had earned only around $48,000 when he actually earned over $50,000. The General Counsel's attorney insisted that the difference involved only "maybe a thousand or $1,200," asserting that all of Heller's earnings had been taken into account and that Respondent was trying to apply them inappropri- ately so as to yield an offset. The General Counsel maintained that Hell- er's employment ended on 22 November and that he stopped earning money at that time. "They may have paid him commissions further down the line for cars he sold before he was fired, or not hired" the General Counsel stated, but asserted that such sums are not interrn earnings. The General Counsel added: "Their figure given to us, or the figure that we gleaned from their records, included all of the monies that they've set forth here, and we may be off a thousand dollars that they've set forth here, and we may be off a thousand dollars that their records were brought up-to-date afterwards or something Iâ€”I'm not concerned about that. What we're saying is that to arrive at the percentage that we used in our backâ€”back pay spec, we used all the money Respondent paid this man, all the money they paid him. And that included monies for deals that he made in October but that he didn't get the money for until De- cember. It included all that money. And we used that total figure to come up with the percentage of his sales." Respondent disputed such contention on the basis that the money had not yet been earned. DOWNTOWN TOYOTA 1165 salesmen to have a draw against unearned commissions, he said. Stokes testified that he never received an over- draw at Downtown Toyota. Stokes said: The 1st was supposed to be the draw against com- missions and the 5th would be the wash out check. Well, because of, you know, the time element, I guess because of their figuring, you know, the books and stuff, we never got our check on the 5th. So we usually had to take a draw.18 According to Stokes, Tony Karuso, the sales manager at Downtown Toyota, did have discretion to grant an over- draw: He might allow "certain parties" to draw beyond what they had earned in commissions. Stokes testified, however, that this did not happen in his case. Stokes said he was never told by Respondent that he had been overdrawn. Stokes testified that he had never heard of Respondent claiming he was overdrawn before he attended the hearing. Stokes agreed that there would be a period when there was an insufficient inventory of cars to sell. He did not recall how many cars he had sold during his last month at Downtown Toyota. Nor could Stokes recall when he got his last check from Respondent. Stokes was recalled on rebuttal to testify again that Respondent had never told him he was arrears in the amount of $596.64. He also testified that he had never seen Respondent's Exhibit 7, which General Manager Fattore had identified as a computer printout of Stokes' earnings for the month of October 1983. Finally, Stokes reviewed the list of names in attach- ment I to the amended backpay specification and agreed that the persons named there were the individuals with whom he had worked at Downtown Toyota except for one. He said he did not remember Larry Casey (later identified by Heller as Larry Corey). Michael Heller, who described himself as a professional automobile salesman, said he was terminated by Down- town Toyota on 31 October 1983. He was reemployed by Respondent on 7 November 1983 and worked that 1 day. Since 5 December 1983 Heller has been employed by Concord BMW. After his discharge, Heller made sev- eral visits to Berkeley Toyota during the first week of November in the pursuit of employment and thought he was going to be hired there about 7 November. Heller said he was in contact with other dealerships about a salesman's job in November 1983 but was never ex- tended an offer. Heller stated that at the time of his hire at Concord BMW he had an understanding with Bill Radcliffe, who hired him, that he could take time off to travel to new Britain, Connecticut, for Christmas that year. It was, he said, a "condition of hire." Heller said he worked on 21 28 Stokes explained: A paycheck is a wash out you know, this is the 1st and the 5th. Your draw check is supposed to be like on the 1st, the 5th of the month they wash you out and everything you sold for that month, everything that you've got coming you should get on the 6th. . . . And you know, it didn't work that way. You got paid, you know, after the 5t13 the 7th would roll around and you'd getâ€”another deal would get cashed and you got another check separate for that and you kept getting these little draw checks. December 1983, flew the next day to Connecticut, and then returned home on the morning of 2 January 1984. He thought he probably returned to work on 3 January 1984. Heller agreed that he had taken an earlier vacation in Mexico, probably for 7 or 8 days in September 1983. According to Heller, there is no practice in the auto- mobile industry of providing vacations to salesmen. Heller said, "What happens is, you'll try to figure out what your periods are that you're not going to have cars or that there isn't a lot of business and you try to make a vacation if you are like I am." Heller said while em- ployed at Downtown Toyota he "barely took a day off." Heller testified on rebuttal that attachment I of the amended backpay specification correctly identified the persons working at Downtown Toyota while he was there except for one "slight mistake." "Larry Casey is supposed to be Larry Correy," he said. Heller said he was not physically present at Down- town Toyota in December 1983, although his brother, Richard, worked there then and "for quite awhile after- wards." Heller said when he left Downtown Toyota he had sales pending on two vans sold in November 1983 and delivered in December 1983. One was sold to a person named Meyers living in Vallejo, and the other was sold to a Dr. Jacobowitz who lived in Monterey. Heller said he received about $1500 in commissions on the two sales. Heller was shown Respondent's gross book (see R. Exh. 13) and was asked by the General Counsel's attorney about listings that indicated sales had been made by him in December 1983. Contrary to what the gross book and Fattore indicated, Heller denied sell- ing cars to customers named Nguyen, Mueller, Cords, Naldmoto, Gonzales, Barnes, and McGregor or receiving any commissions on any of such sales. Heller also disput- ed sharing a commission with a salesman named de Silva on the sale of a Tercel in November 1983. Heller stated that he had paid taxes on about $50,000 earned at Downtown Toyota in 1983. He denied that he had received $2603.65 in December 1983 as Respondent had claimed. He thought possibly that Richard Heller may have received such an amount. Finally, Heller said while working at Downtown Toyota he only sold two non-Toyota vehicles. Both were sold while working with Patty Sullivan. One was a Subaru wagon and the other was a Pontiac. The Board's Order requires Respondent to make each of the discriminatees whole for any loss of earnings re- sulting from the discrimination, less any interim earnings, in accord with its Woolworth formula." Woolworth con- templates that "loss of pay is to be computed on the basis of each separate calendar quarter or portion thereof." "Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter." See 90 NLRB at 292-293.20 " F. W. Woolworth Co., 90 NLRB 289 (1950). The remedy section of the underlying decision herein gives an incorrect citation for the case. 2Â° The Board's Order also requires payment of interest on backpay, such interest to be based on the "adjusted prune interest rate." See Flori- da Steel Corp., 231 NLRB 651 (1977). 1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel's burden in backpay cases is lim- ited to showing the amount of gross due to discrimina- tees, but the General Counsel's attorney here has provid- ed information that has had the effect of limiting the backpay demands with respect to the discriminatees. Respondent has conceded the correctness of the back- pay periods claimed by the General Counsel for each of the discriminatees. Respondent stipulated at the outset of the trial that the "General Counsel's gross backpay figure with regard to Robert Stokes is a reasonable one, both in theory of computation and amount, and that backpay issues with regard to Mr. Stokes concern an al- leged [over]draw and his interim earning[s] availability for work and seeking employment" (Tr. 25). Respondent made other concessions. At the start of the trial Re- spondent's counsel stated that he did not intend to dis- pute the General Counsel's definition of the appropriate unit (Tr. 19). At the end of the trial, Respondent's coun- sel stated that he did not intend to challenge the efforts by either Stokes or Heller in seeking interim employment (Tr. 437). Respondent acknowledges that the General Counsel has discretion in computing backpay and that it bears the burden of showing that the General Counsel's formula is is Notwithstanding these concessions, Re- spondent makes arguments that seem contradictory to such and, in any event, are at odds with facts established by the record and controlling principles of law. Respondent Agrees that "the amount of backpay calcu- lated to be due Stokes is reasonable, both in the amount, and in the method utilized." Respondent contends, how- ever, that at the time of his termination Stokes had a "negative balance of $596.64" in his draw account so that rather than being owed $648 he was entitled to only $51.36. I reject Respondent's contention on the basis that the evidence does not persuade me that Stokes was over- drawn at the time he left Respondent's employ. Stokes agreed that while employed by Respondent he had taken draws against commissions that he had earned. Stokes said that there may have been instances in which "cer- tain parties," personal friends of Sales Manager Tony Caruso, may have been given draws in excess of what they had earned. It did not happen in his case, however, Stokes said. Stokes testified that at no time was he ever told that he was overdrawn. In fact, he stated at the hearing: "This is the first time I've heard about that."21 Respondent's principal contention with respect to Heller is that the General Counsel's attorney should compute Heller's backpay on the same basis that she did for Stokes, i.e., a per diem average. But different meth- ods may be utilized in computing different discrimina- tees' backpay. Bagel Bakers Council v. NLRB, 555 F.2d 304 (2d Cir. 1977). A formula that yields a sum for a dis- criminatee that approximates what he would have earned but for the discrimination is appropriate, and the method utilized by the General Counsel in computing Heller's 21 It is not necessary to consider the General Counsel's first contention with respect to Respondent's claim of a right of a setoff as to Stokesâ€” that setoffs are not allowed in backpay proceedings. The record per- suades me that Stokes was not overdrawn when he left Respondent's employ as it claims. Respondent's proof on this issue was confusing and not convincing. backpay does that. The General Counsel's attorney ex- plained at the hearing why different methods were used here in computing the backpay for the two discrimina- tees: Stokes' backpay period is one week in time. To project a daily average over a week's period of time seems a reasonable way to do it. To project earn- ings over the period of an entire year, which is almost the amount of time we're dealing with for Mr. Heller, is unreasonable and, if [sic] fact, the earnings for Mr. Heller in the back pay year were significantly higher than they had been the year before. The overall gross sales at Downtown Toyota were significantly different the following year than they were the year of 1983. So while in Stokes' situation a projection like that doesn't unduly prejudice him, it would be very prejudicial to Mr. Heller to merely project and basically give him a daily earning for the following year. There's just too many variables in the automobile industry to do that with any accuracy at all. In advancing its per diem theory Respondent suggests that the unit used by the General Counsel in calculating Heller's ba.ckpay was inappropriate. The unit issue is res judicata, however, and in any event as noted above, Re- spondent's counsel stated at the hearing that he would not dispute the appropriateness of the unit. Respondent also implies that the records used by the General Coun- sel in calculating Heller's backpay were not reliable. I disagree. Respondent provided the records, and Re- spondent can hardly be heard to complain on this score. Compliance Officer Young was furnished file folders of all persons said to have worked at Respondent's Down- town Toyota facility in 1983 and 1984. Later Respondent furnished the compliance officer with a computer pay- roll, which he thought provided a more reliable measure of employees' earnings. The original backpay specifica- tion was amended when the compliance officer learned that certain persons did not belong in the bargaining unit as previously thought Of course the compliance officer had not attempted to reconcile Respondent's Form 941 quarterly tax returns that were shown to him on cross-examination. He had not seen them previously, but he explained, this was of no particular significance. The compliance officer point- ed out that "as long as I'm using a consistent source of documents in which the same method of reporting has been used, I would think I have a reasonable base of data."2 2 22 The General Counsel asserts in her brief, with some justification, that Respondent's major goal in the proceeding was to make it appear that its records were so confusing that a simple, per diem calculation is the only rational choice in computing Heller's backpay. The General Counsel notes that Respondent continued to assert during the trial that there may still be more accurate records on its premises. In any event, I am not persuaded that Respondent's tax records are significantly different or more reliable than those relied on by the General Counsel in comput- mg Heller's backpay. DOWNTOWN TOYOTA 1167 I reject Respondent's contention that it was absurd for Compliance Officer Young to assume Heller, admittedly one of Respondent's most productive salesman, would have maintained his percentage of sales into 1984 had he not been discharged in the face of increased gross profit of Respondent and the hiring of additional salesmen. 22 I also rejected Respondent's contention that the General Counsel's presentation was insufficient in that the com- pliance officer had failed to take into account that sales- men at dealerships other than Downtown Toyota sold Toyotas. I credit Heller's testimony indicating it was an infrequent event, and I reject Fattore's testimony that it occurred "consistently. â€24 Respondent cites certain reasons for disregarding the Woolworth formula that was promulgated in 1950â€”in- cluding, Toyota and the Voluntary Restriction Agree- ment were unknown in 1950 and the variability of Hell- er's commissionsâ€”but none justify the disregarding of the Woolworth formula. The General Counsel's backpay determination for Heller was not unreasonable or punitive as Respondent asserts. Respondent asks that its computation as set forth in Respondent's Exhibit 15 be adopted as the more rea- sonable, but that does not satisfy Respondent's burden. The "Questions Concerning Interim Earnings," which Respondent raises in its brief, may be readily answered. Respondent's concession concerning the discriminatees' interim employment has been previously noted. As the General Counsel points out, both discriminatees made adequate efforts in seeking interim employment. Heller hardly absented himself from the job market between 22 December 1983 and 2 January 1984 as Respondent claims. Heller had ceased looking for employment after securing a job with Import Motors and starting to work there about 5 December 1983. He arranged to have the time off during the holiday season when he was em- ployed. Hickory Best, 267 NLRB 1274 (1983), the case cited by Respondent, is not similar to the case at bar. In that case the discriminatee removed himself from the job market by going to Mexico and staying for a 3-month period. Finally, I reject Respondent's contention that the backpay specification should have included $2603.65 in earnings for Heller in December 1983 and treated as in- terim earnings for that month. Heller said he made two van sales in November 1983 before leaving Respondent's employment on the eighth of that month and delivered both vehicles later, earning commissions in the approxi- mate amount of $1500. This testimony was consistent with Respondent's payroll record for November ($1473.03) and December 1983 (no earnings). The addi- tional earnings that Respondent tried to attribute to Mi- chael Heller for December 1983 were undoubtedly paid to Richard Hellerâ€”at least not to Michael. In view of the foregoing, I find: 23 Heller and Stokes testified that the persons listed in the remedy backpay specification were the ones who worked at Downtown Toyota during the relevant period. Fattore's testimony indicated he did not know how many salesmen worked at Downtown Toyota. 24 Fattore was in effect arguing for a unit that includes salesmen at all of its dealerships. 1. Respondent is liable for backpay to Robert Stokes for the period stated in the General Counsel's backpay specification, i.e., from 1-through 7 November 1983. 2. Respondent is liable for backpay to Michael Heiler for the period stated in the General Counsel's backpay specification, i.e., beginning on 1 November 1983 and continuing until tolled on 7 November 1983; beginning again on 22 November 1983 and continuing thereafter until 17 October 1984 on which date it ended. 3. The daily average earnings of Robert Stokes in the 3-month period prior to his discharge on 31 October 1983 is an appropriate measure of his gross backpay. His average daily earnings over this period was $108, and the total gross backpay due Stokes for his 6-day backpay period is $648. 4. (a) An appropriate measure of gross backpay due Michael Heller is the same percentage of total commis- sions earned by the appropriate bargaining unit during the backpay period as to percentage of total commissions Heller earned while employed by Respondent from Janu- ary-October 1983. (i) The appropriate bargaining unit consists of: All full- time and regular part-time automobile salesmen em- ployed by Respondent at its Downtown Toyota facility, located at 3020 Broadway, Oakland, California; exclud- ing office clerical employees, fmance and insurance man- agers, lot boys, parts and lubrication employees, guards, and supervisors as defmed in the Act. (ii) Total unit commissions earned by the appropriate unit during the period January-October 1983 were $229,775. Michael Heller's total commissions during the same period was $48,664. Michael Heller earned 21.18 percent of the commission earnings of the appropriate bargaining unit during the same period. (b) Total commission earnings of the appropriate unit during the backpay period were as follows: Period Commission Totals November 1983 $39,560 December 1983 25,407 Jan-March 1984 46,938 April-June 1984 97,391 July-September 1984 117,921 October 1984 28,170 (c) The total gross pay due Michael Heller is 21.18 percent of total commissions earned during his backpay period as follows: Period Gross Backpay November 1983 26$4,190 December 1983 5,381 (9,571 for 4th Q. 1983) 1st Qtr. 1984 $9,941 2d Qtr. 1984 20,627 3d Qtr. 1984 24,976 October 1984 263,272 25 Heller worked 15 days in November 1933 and is entitled to one-half of 21.18 percent of the $39,560 total sales for that month. 26 Heller's back period ended on 17 October 1984 and is entitled to seventeen-thirty-firsts of 21.18 percent of $28,170 total sales that month. 1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5. Robert Stokes had no interim earnings. Michael Heller had interim earnings from Import Motors, Inc., 1945 Market Street, Concord, California 94520, as fol- lows: Period Interim Earnings 4th Qtr. 1983 $ 813 1st Qtr. 1984 15,742 2d Qtr. 1984 17,989 3d Qtr. 1984 16,586 October 1984 275,995 6. Total net backpay due Stokes is $648. 7. Total net backpay due Michael Heller is as follows: Interim Net- Earnings Backpay Oct. 1984 3,272 5,995 0 On the basis of the foregoing fmdings and conclusions and on the entire record, I issue the following recom- mended 2 8 ORDER The Respondent, Lionel G. Sullivan and Ralph A. Fattore, a Partnership d/b/a Downtown Toyota, Oak- land, California, its agents, successors, and assigns, shall pay to Robert Stokes $648 and Michael Heller $19,786 as net backpay due them, plus interest as computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962), less tax withholdings required by Federal and state laws. Period Gross Interim Net-Earnings Backpay 11983/4 $9,571 $ 813 $8,758 1984/1 9,941 15,742 0 1984/2 20,627 17,989 2,638 1984/3 24,976 16,586 8,390 Period Gross 28 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the 27 Heller is entitled to seventeen-thirty-firsts of October 1984 earnings Board and all objections to them shall be deemed waived for all pur- ($10,939) as his backpay period ended 17 October 1984. poses.