Velocity Express, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2004

342 N.L.R.B. 888 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 87
888
Velocity Express, Inc., formerly known as Corporate
Express Delivery Systems and Teamsters Local
886, a/w International Brotherhood of Team-
sters, AFL–CIO, CLC. Case 17–CA–20076–1
August 31, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 19, 2000, the Board issued its Decision
and Order finding that the Respondent unlawfully dis-
charged employees Edwin and Hildegard Kirk for engag-
ing in union activity, and ordering the Respondent to
reinstate the employees and make them whole for any
loss of earnings and benefits resulting from the dis-
charge.1 On August 8, 2002, the Board’s Order was en-
forced by the United States Court of Appeals for the Dis-
trict of Columbia Circuit.2 Subsequently, the Regional
Director issued a compliance specification setting forth
the amount of backpay due each of the discriminatees.
The Respondent then filed an answer asserting that the
backpay calculations were inaccurate and denying that
any backpay was due.
A hearing on the issue of backpay was held on July 22,
2003, before Administrative Law Judge John J. McCar-
rick. On September 30, 2003, the judge issued the at-
tached supplemental decision. The Respondent filed
exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the Respondent’s exceptions and brief and has
decided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
I.
The Respondent is in the business of providing same-
day delivery and related services. Edwin and Hildegard
Kirk were employed by the Respondents as drivers, and
owned the vehicles they operated on their delivery
routes. They were paid a regular salary, from which the
Respondent deducted expenses for vehicle insurance and
pagers. The Kirks were responsible for all expenses re-
lated to the operation of their vehicles, including gasoline
and repairs.
After having been discharged by the Respondent in
March 1999, Edwin Kirk was self-employed until early
in 2002, at which time he took a job that paid an hourly
wage. Hildegard Kirk was employed during the backpay

1 332 NLRB 1522.
2 292 F.3d 777 (D.C. Cir.).
period at a job paying an hourly wage. The record con-
tains no specific evidence regarding the nature of their
interim employment.
The compliance specification covers the period from
the Kirks’ discharge in March 1999 through the end of
2002. The compliance officer calculated backpay in the
compliance specification for both discriminatees by de-
ducting the following from gross backpay: (1) expenses
for insurance and pagers normally deducted by the Re-
spondent; (2) severance pay; (3) estimated out-of-pocket
expenses related to the operation and maintenance of
vehicles;3 and (4) interim earnings. With regard to the
portion of the backpay period during which Edwin Kirk
(Kirk) was self-employed, the compliance officer calcu-
lated his net interim earnings by subtracting business
expenses, based on gross mileage deductions on tax re-
turns, from gross receipts.
The judge found that the compliance officer’s backpay
formula appropriately included deductions for interim
earnings, severance pay, and expenses for pagers and
insurance. However, the judge determined that the de-
ductions for estimated out-of-pocket vehicle expenses
from the gross backpay figures were not appropriate, and
revised the backpay formula to exclude the deductions
for those expenses. For reasons set forth below, we
adopt the judge’s formula.
II.
In determining the amount of backpay owed a dis-
criminatee, the Board may use any formula that will ap-
proximate what the discriminatee would have earned
absent the discrimination, if the formula is not unreason-
able or arbitrary in the circumstances. Performance
Friction Corp., 335 NLRB 1117 (2001) (and cases cited
therein).4 Here, we find that the formula proposed by the
judge accurately reflects the wages that the discrimina-
tees would have earned—i.e., what they would have been
paid by the Respondent—had they not been discharged
unlawfully.

3 This estimate was based on the Kirks’ representation of what their
expenses would have been had they continued to work for the Respon-
dent, including expenses for gasoline, repairs, tires, oil changes, and
van washes.
The General Counsel cautioned at the hearing that the Kirks’ out-
of-pocket expenses from gross backpay were voluntarily placed in the
compliance specification, and were not based on any affirmative burden
on the General Counsel to do so. Any effort on the part of the compli-
ance officer to mitigate gross backpay amounts is done as a public
service, and does not serve to supplant the normal burdens in a compli-
ance proceeding. See, e.g., Folk Chevrolet, Inc., 176 NLRB 277, 279
(1969).
4 We agree with the judge that the General Counsel has the burden of
demonstrating the gross amount of backpay due the backpay claimants.
Hansen Bros. Enterprises, 313 NLRB 599, 600 (1993); Mastro Plastics
Corp., 136 NLRB 1342, 1346 (1962).
VELOCITY EXPRESS, INC. 889
The Respondent, however, argues that the judge’s
backpay formula is not reasonable because it does not
account for the expenses the discriminatees would have
paid out of their wages, which the Respondent claims
should be deducted from the gross backpay figure. We
find no merit in this argument. It has long been estab-
lished that the Board does not deduct from gross backpay
those expenses that employees would have incurred had
they not been unlawfully discharged. See Laborers Lo-
cal 38 (Hancock-Northwest), 268 NLRB 167 (1983),
enfd. in relevant part 748 F.2d 1001 (5th Cir. 1984); East
Texas Steel Castings Co., 116 NLRB 1336, 1342 (1956),
enfd. 225 F.2d 284 (5th Cir. 1958), clarified 281 F.2d
686 (5th Cir. 1960); Myerstown Hosiery Mills, 99 NLRB
630, 631 (1952). In Hancock-Northwest, the Board held
that the respondent unions were not entitled to a credit
against gross backpay for expenses—including transpor-
tation, lodging, and meals—that the discriminatees
would have incurred had they worked for the employer
during the backpay period. In that case, as here, the em-
ployees were personally responsible for certain expenses,
the expenses were integral to their employment, and the
employees deducted those expenses on their Federal tax
returns. 268 NLRB at 169–170. Further, the Board re-
jected the respondents’ argument, similar to that of the
Respondent and our dissenting colleague, that a failure to
allow a credit for such expenses against gross backpay
would result in a windfall for the discriminatees.5 We
find that nothing in the circumstances presented here
compels a different result.
We also agree with the judge that the compliance offi-
cer properly calculated Kirk’s net interim earnings by
deducting operating expenses from gross earnings for
that portion of the backpay period during which he was
self-employed. As the judge has observed, this is the
standard method used to determine net interim earnings
for discriminatees who are self-employed during the
backpay period. See NLRB Casehandling Manual, Part
Three, Section 10541.3. Moreover, the parties have
stipulated that Kirk’s net interim earnings, as set forth in
the compliance specification (including the deductions),
are accurate.6 Thus, we adopt the backpay formula rec-
ommended by the judge to be used to calculate the back-
pay amounts owed the claimants.

5 On appeal, the court also rejected the respondent’s windfall argu-
ment and enforced the Board’s backpay order.
6 We agree with the judge that the General Counsel appropriately re-
lied on Edwin Kirk’s tax returns in determining his interim earnings.
See Kansas Refined Helium Co., 252 NLRB 1156, 1159 (1980), enfd.
683 F.2d 1296 (10th Cir. 1982).
III.
Our dissenting colleague contends that Edwin Kirk’s
gross backpay should be reduced by the amount of the
vehicle-related expenses he would have incurred had the
Respondent not discharged him.7 Our colleague argues
that because Kirk’s interim earnings were reduced by the
business expenses Kirk incurred during the period in
which he was self-employed, Kirk would receive a wind-
fall unless his gross backpay is analogously reduced. We
disagree. The dissent’s simple equation of the two types
of expenses in this case is inconsistent with well-
established principles for calculating an employer’s
backpay liability and unsupported by the record.
First, as we have shown, Board precedent is clear: ex-
penses that an employee would have incurred, had he not
been unlawfully discharged, are not deducted from gross
backpay. There was no error, then, in failing to deduct
from Kirk’s gross backpay the expenses he claimed on
his tax returns while employed by the Respondent.
That Kirk incurred interim expenses after his discharge
does not affect the ultimate calculation of backpay liabil-
ity, at least under the present circumstances, because the
Respondent has failed to establish the facts necessary to
support the sort of reduction advocated by our colleague.
The Board’s rule is that expenses incurred in connec-
tion with interim employment may be deducted from
interim earnings, if they exceed the expenses that the
employee would have incurred had he not been dis-
charged. See Hancock-Northwest, 268 NLRB at 170.
See also East Texas Steel Castings, 116 NLRB at 1341–
1342. Here, there is no issue with respect to the amount
of interim expenses: the Respondent has stipulated that
the net interim earnings set forth in the compliance speci-
fication are accurate. Thus, there would be a basis for
reducing the Respondent’s backpay liability only if
Kirk’s interim expenses were, in fact, less than the ex-
penses he incurred while employed by the Respondent
(in which case, they could not be deducted from interim
earnings).
To enable this calculation, however, it was the Re-
spondent’s burden to prove with particularity that the two
types of expenses are comparable. See Ryder System, 302
NLRB 608 (1991) (employer failed to adequately sepa-
rate amounts in two categories of expenses, meals and
travel, so that expenses could be separately calculated
with specificity). This specific rule follows from the
general rule that the Respondent, as the wrongdoer, must

7 Our colleague would calculate such deductions based on the
amount of work-related expenses that Kirk claimed on his tax returns
while employed by the Respondent. He concedes that Hildegard Kirk’s
backpay should be calculated without any deductions for her out-of-
pocket vehicle expenses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890
establish any facts that would negate or mitigate its
backpay liability. See, e.g., Hansen Bros. Enterprises,
313 NLRB 599, 600 (1993); Florida Tile Co., 310 NLRB
609, 610 (1993), enfd. mem. 19 F.3d 36 (11th Cir. 1993).
The Respondent has failed to carry its burden. The re-
cord simply does not permit the sort of calculation with
respect to expenses that might reduce the Respondent’s
backpay liability. As to the period prior to Kirk’s dis-
charge, the record contains specific evidence of Kirk’s
out-of-pocket vehicle expenses as estimated by the com-
pliance officer, itemized on a quarterly basis as to gas, oil
changes, repairs, tires, and van washes.8 The record also
contains figures of the aggregate amount of expenses
deducted from Kirk’s interim earnings, as stipulated by
the parties and based on gross mileage figures set forth in
tax returns. But with respect to Kirk’s interim employ-
ment, the record does not reveal the specific nature of
that employment or the specific expenses that Kirk in-
curred during this period, other than a passing reference
to Kirk’s use of standard mileage rates on his income tax
returns during the first partial year of the backpay period.
The only evidence regarding Kirk’s interim employment
proffered by the Respondent was Kirk’s 1999 tax returns
indicating that he was employed by DSI-Oklahoma City
for a portion of that year in some undefined capacity,
with a partially illegible notation as to mileage.
Further, the Respondent presented no evidence what-
soever regarding Kirk’s interim employment and ex-
penses for the remainder of the backpay period from
2000 through the end of 2002. Even as to 1999, the Re-
spondent has failed to provide evidence that would allow
a meaningful comparison for expenses that year, either
by its failure to establish the nature of Kirk’s interim
employment or by its failure to show the exact nature of
Kirk’s expenses during that employment. See Ryder
System, supra.
Consequently, the record provides no basis for balanc-
ing Kirk’s interim expenses against expenses he would
have incurred had he continued to work for the Respon-
dent. In the absence of specific evidence of Kirk’s in-
terim expenses, adopting the backpay formula proposed
by the judge does not result in either a “punishment” of
the Respondent or a windfall to Kirk, as the dissent con-
tends. It is the Respondent that has failed to introduce
relevant evidence to mitigate its backpay obligation;
therefore, it is the Respondent that must bear the conse-

8 Because, under established law, it was improper for the compliance
officer to deduct any business expenses from gross backpay, we need
not address our colleague’s argument that the compliance officer
should have based these deductions on Kirk’s income tax returns rather
than estimated expenses.
quences of that failure. Thus, we affirm the backpay
awards as recommended by the judge.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Velocity Express, Inc., Okla-
homa City, Oklahoma, its officers, agents, successors,
and assigns, shall make whole the individuals named
below by paying them the amounts following their
names, with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), minus tax withholdings required by Federal
and State laws:

Edwin Kirk $136,818.13
Hildegard Kirk 12,000.27

Total $148,818.50

CHAIRMAN BATTISTA, dissenting in part.
For the reasons stated by the judge, I agree with my
colleagues that the backpay of Hildegard Kirk should be
calculated based on her average weekly rate for 1999,
and not at the lower rate for the route to which she was
assigned shortly before her unlawful discharge. I also
agree with the judge and my colleagues that the gross
backpay for Edwin and Hildegard Kirk should be ad-
justed to subtract the insurance and pager payments they
would have paid to the Respondent had they not been
terminated.
I dissent from my colleagues’ failure to further adjust
Edwin Kirk’s gross backpay by additionally subtracting
the operating expenses that Kirk would have incurred
had the Respondent not discharged him.
It is well settled that the purpose of backpay is to make
discriminatees whole for the losses that they sustain as a
result of unlawful action taken against them. The pur-
pose is not to punish the respondent. Republic Steel
Corp. v. NLRB, 311 U.S. 7, 12 (1940). “The make-
whole statutory scheme established by the Act is exclu-
sively remedial. The Board may not use its processes to
punish anyone.” Kenmore Contracting Co., 303 NLRB
1, 5 (1991), enfd. mem. 888 F.2d 125 (2d Cir. 1989).
Nor should backpay improperly enrich the discrimina-
tees, i.e., place them in a better position than they would
have enjoyed if discrimination had not occurred. Master
Appliance Corp., 164 NLRB 1189, 1190 (1967); Tara-
corp Industries, 273 NLRB 221, 223 (1984).
In determining backpay owed, perfection is not man-
dated. Reasonableness, and not exactitude, is all that is
required. See, e.g., Crimpi Transport, 266 NLRB 1054
(1983). The Board is charged with selecting a backpay
formula that is appropriate to the circumstances of the
VELOCITY EXPRESS, INC. 891
particular case. United Aircraft Corp., 204 NLRB 1068
(1973). Thus, the backpay formula selected must rea-
sonably approximate the amount which the employee
would have earned but for the discrimination against
him. Further, where there is a dispute as to the appropri-
ate backpay formula, the judge is to choose the “most
accurate formula,” e.g., the formula that best captures the
likely amount of wages lost due to the illegal termina-
tion. NLRB v. Pepsi Cola Bottling Co. of Fayetteville,
258 F.3d 305, 314 (4th Cir. 2001).
Applying these legal principles, I find that the backpay
formula that most closely approximates what Kirk would
have earned but for Respondent’s discrimination against
him is the amount he would have been paid by the Re-
spondent if he had he not been discharged, minus the
operating expenses that he would have incurred if he had
not been discharged.
Kirk was employed by the Respondent as a “same-
day” delivery driver. In this capacity, Kirk was paid a
flat fee from which he reimbursed the Respondent for
insurance and pager costs, and from which Kirk covered
the other costs of his employment (e.g., gas, vehicle
maintenance, etc.).1 As recognized by the judge at the
hearing, the amount of Kirk’s flat fee was not the same
as the net amount that he derived from his employment.
My colleagues would not deduct operating expenses
from gross backpay. They say that these operating ex-
penses are the same as expenses for transportation, lodging
and meals. In cases where the employee travels to a fixed
jobsite, the Board does not deduct from gross backpay the
expenses incurred in traveling to and from the jobsite or
for lodging and meals near that jobsite. By contrast, in the
instant case, the expenses were incurred in performing the
work, i.e., driving the truck. Thus, to take a hypothetical, a
driver is paid $100-flat fee for driving a truck. From this
$100, he must pay for $20 gas, oil, etc. He winds up with
$80 in his pocket. In my view, if he is discharged, the
employer must pay him $80, not $100.
Interestingly, when calculating interim earnings, my
colleagues do deduct operating expenses. The result is to
decrease the amount of interim earnings and to increase
the Respondent’s liability. I agree. But, if operating
expenses are to be used for this purpose, it would seem
equitable and rational to use such expenses to reduce
gross backpay.
My colleagues argue that there is a difference between
operating expenses as an offset from interim earnings

1 As noted above, the insurance and pager costs are not at issue
herein. My colleagues and I agree that, in determining backpay, these
costs are to be deducted from the flat fee. The other costs (gas, vehicle
maintenance, etc.) are referred to herein as operating expenses, and
they are at issue herein.
and operating expenses as an offset from gross earning. I
agree that the operating expenses incurred in connection
with interim employment are not necessarily the same as
operating expenses incurred in connection with employ-
ment with the Respondent. However, it does not follow
that there should be no offset at all for operating ex-
penses that would have been incurred but for the dis-
charge. In the instant case, we know from Kirk’s 1998
tax returns the amount of expenses that he claimed for
1998, the last full year in which he was employed by the
Respondent. That figure is a percentage of his gross pay
for that year. I would draw the inference that the per-
centage would have remained the same for later years,
and I would use the resultant dollar figure to reduce gross
backpay.

Mary Taves, Esq., for the General Counsel.
Terry L. Potter, Esq. (Blackwell, Sanders, Peper, Martin LLP),
of St. Louis, Missouri, for the Respondent.
Eddie Landers, Organizer, of Oklahoma City, Oklahoma, for
the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried before me in Oklahoma City, Oklahoma, on July 22,
2003, upon the compliance specification issued by the Regional
Director for Region 17 of the National Labor Relations Board
(the Board). On December 19, 2000, the Board issued its Deci-
sion and Order1 directing, inter alia, that Respondent make
whole Joseph Bennett,2 Edwin Kirk, and Hildegard Kirk for
any loss of earnings or other benefits suffered as a result of the
discrimination against them. Thereafter, on August 8, 2002, the
United States Court of Appeals for the District of Columbia
Circuit issued its judgment3 enforcing the Board’s Decision and
Order. Having been unable to reach an agreement with the
Board concerning the amount of backpay due to the above-
named discriminatees, Respondent, the Charging Party, and the
Regional Director for Region 17 entered into a stipulation on
January 18, 2003, that provided the only issue was the amount
of backpay due to the three discriminatees. On February 26,
2003, the Regional Director for Region 17 issued the compli-
ance specification4 and on March 19 Respondent filed its an-

1 Corporate Express Delivery Systems, 332 NLRB 1522 (2000).
2 At the hearing the parties offered a stipulation consenting to in-
stallment payment schedule approved by the Acting Regional Director
for Region 17 on July 21, 2003, that provides Respondent has agreed to
make whole Joseph Bennett in the sum of $34,000 to be paid in 12
equal installments commencing July 25, 2003, in full settlement of
Bennett’s backpay claims in this case. GC Exh. 2.
3 D.C. Circuit No. 01–1058, unpublished memorandum filed June
11, 2002.
4 At the hearing counsel for the General Counsel amended the back-
pay specification by offering revised appendixes B-1 and B-2 which
reflect adjustments to gross backpay for Edwin Kirk and Hildegard
Kirk for the first quarter of 1999. GC Exh. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 892
swer to the compliance specification and denied that any of the
discriminatees are due backpay.
The principal issues presented for decision are whether the
General Counsel’s gross backpay formula is reasonable and
whether Respondent proved any of its affirmative defenses.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
Findings and Conclusions
1. The underlying unfair labor practice case
Respondent has been engaged in providing same day deliv-
ery services in Oklahoma City, Oklahoma. Respondent em-
ployed both owner/operators and so called company drivers in
its delivery system.
In its December 19, 2000 decision, the Board adopted the
findings and conclusions of Administrative Law Judge Pargen
Robertson that Respondent unlawfully discharged its employ-
ees Joseph Bennett, Edwin Kirk, and HIldegard Kirk.
As a result, the Board’s Order requires Respondent to offer
reinstatement to and make whole Bennett and the Kirks.
2. The General Counsel’s gross backpay formula
Robert Fetsch (Fetsch), Region 17 compliance officer, testi-
fied that he prepared the compliance specifications. Amend-
ments to the compliance specifications were necessary as addi-
tional information was provided at various times before and
during the hearing.
Fetsch testified that the beginning of the backpay period for
each of the discriminatees was based on the administrative law
judge’s finding that they were unlawfully terminated on March
9, 1999. The backpay period for the discriminatees ended the
first week of October 2002 with the offer of reinstatement let-
ters from Respondent dated October 3, 2002.
For Edwin Kirk, Fetsch used Kirk’s most recent weekly base
pay of $760 together with his weekly freight rate of 254.40 to
calculate his weekly salary of $1014.40. Fetsch used the same
formula to calculate Hildegard Kirk’s weekly salary. However,
Fetsch did not use Hildegard’s $380 weekly base pay at the
time of her termination. Fetsch felt it was more equitable to use
Hildegard’s 1999 average $591.25 weekly rate since her
weekly rate had been reduced to $380 only a week before her
termination. There is evidence that in the past Respondent had
reassigned Hildegard to a more lucrative route on her request.
After her reduction in pay just before her termination, Hilde-
gard requested reassignment to the higher paying route. Her
manager, Carol Miller, told Hildegard that it would not be a
problem to add something to her route to get it back to where
Hildegard originally had been. However, Hildegard was termi-
nated before Respondent could act upon her request.
The Board found the discriminatees were employee
owner/operators of Respondent. As owner/operators, the dis-
criminatees were responsible for certain expenses that were
deducted from their compensation by Respondent. Since these
expenses were built into the discriminatees’ compensation, the
Region concluded that an accommodation had to be made for
all related employment expenses. Fetsch testified that those
expenses included vehicle and related expenses. Both Edwin
and Hildegard Kirk testified concerning their estimates of vari-
ous expenses including van payments, gasoline, oil changes,
repairs, tires, van washes, insurance, and pager expenses.
Fetsch testified that the Region chose not to use the standard
deduction for business expenses the Kirks claimed on their tax
returns to calculate gross backpay because to do so would have
left the Kirks with little or no backpay and would not represent
the actual state of their take home pay with Respondent. In
calculating the Kirk’s employment expenses while employed
with Respondent, Fetsch took estimated annual expenses for
each expense category from the Kirks and prorated those over
calendar quarters or partial calendar quarters. Van payments
were not deducted to compute gross backpay since the Kirks
continued to incur these expenses after they were terminated.
Similarly, expenses the Kirks continued to incur after their
terminations were not deducted from gross backpay, including
auto taxes and license fees. Van insurance was calculated by
deducting the difference between the amount paid while work-
ing for Respondent and the lesser amount of insurance obtained
in interim employment.
In calculating interim earnings, Fetsch testified that the
amounts claimed by the Kirks on their Federal Income Tax
returns for business expenses were used to calculate interim
expenses to offset interim earnings that resulted in net interim
earnings.5 There is no dispute concerning the accuracy of the
amounts used to compute interim earnings.
3. Analysis
a. Applicable legal principals
It is well settled that the finding of an unfair labor practice is
presumptive proof that some backpay is owed, NLRB v. Mastro
Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied
384 U.S. 972 (1966), and that in a backpay proceeding the sole
burden on the General Counsel is to show the gross amounts of
backpay due—the amount the employees would have received
but for the employer’s illegal conduct. Virginia Electric &
Power Co. v. NLRB, 319 U.S. 533, 544 (1943). Once that has
been established, “the burden is upon the employer to establish
facts which would . . . mitigate that liability.” NLRB v. Brown
& Root, 311 F.2d 447, 454 (8th Cir. 1963). It is further well
established that any formula which approximates what dis-
criminatees would have earned had they not been discriminated
against is acceptable if it is not unreasonable or arbitrary in the
circumstances. Iron Workers Local 378 (Judson Steel Corp.),
227 NLRB 692 (1977); NLRB v. Brown & Root, supra at 452;
East Texas Steel Castings Co., 116 NLRB 1336 (1956), enfd.
255 F.2d 284 (5th Cir. 1958); Avon Convalescent Hospital, 219
NLRB 1210, 1213 (1975). In this regard, the Board has stated
that “it is for the [administrative law judge] to consider whether

5 Interim expenses were calculated for Edwin Kirk using his Federal
Income Tax Return Schedule C, which utilized a standard mileage
deduction since Edwin was self-employed. No interim expenses were
found for Hildegard Kirk as her interim earnings came as an hourly
employee.
VELOCITY EXPRESS, INC. 893
the General Counsel’s formula is the proper one in view of all
the facts adduced by the parties and to make recommendations
to the Board as to the most accurate method of determining the
amounts due.” (Emphasis added.) American Mfg. Co. of Texas,
167 NLRB 520. The Board has long recognized the value of
utilizing social security records and income tax returns in de-
termining interim income, and has found that “poor record
keeping, uncertainty as to memory, and perhaps exaggeration”
do not automatically disqualify an employee from receiving
backpay. Pat Izzi Trucking Co., 162 NLRB 242, 245 (1966),
enfd. 395 F.2d 241 (1st Cir. 1968).
b. The gross backpay formula
It is well established that any formula which approximates
what discriminatees would have earned had they not been dis-
criminated against is acceptable and need not attain mathemati-
cal precision as long as it is not arbitrary or unreasonable.
Boyer Ford Trucks, 270 NLRB 1133, 1138 (1984; Iron Work-
ers Local 378 (Judson Steel Corp.), 227 NLRB 692 (1977).
Both the Board and the administrative law judge found that
the owner/operator discriminatees herein were responsible for
certain expenses that were deducted from their pay including
insurance on their vehicles, pager expenses, uniforms, drug
tests, and physical exams. Neither the Board nor the administra-
tive law judge found that vehicle expenses, other than insur-
ance, were deducted from the discriminatees’ compensation.
I find that the gross backpay formula used for the Kirks was
not reasonable. The Board found the Kirks were employees not
self-employed independent contractors. The goal of a backpay
proceeding is to determine what the discriminatees would have
earned had they not been discriminated against. The novel
approach utilized by the Region in deducting expenses incurred
by the Kirks from gross backpay, over and above that which
Respondent deducted for insurance and pagers, is similar to the
calculation used for determining interim earnings for self em-
ployed discriminatees.6 It is inappropriate to use a profit and
loss approach to calculating gross backpay for discriminatees in
the instant case, particularly where the Board found the dis-
criminatees, “have no proprietary interest in their routes and no
significant opportunity for entrepreneurial gain or loss.” Cor-
porate Express Delivery Systems, supra at 1522. The only ap-
propriate deductions from gross backpay were vehicle insur-
ance and pagers, which Respondent automatically deducted
from the Kirks paychecks, since this represents what the Kirks
would have earned but for Respondent’s discrimination.7

6 Inexplicably the Region reasoned that it would not deduct vehicle
payments from gross backpay since the discriminatees continued to
incur these expenses after they were fired. Using this rationale all
vehicle expenses, including gas and oil, tires, vehicle washes, and re-
pairs, should be excluded since they were presumably incurred by the
Kirks after their terminations.
7 The Region deducted the difference between what the Kirks paid
Respondent for insurance and what they later obtained for insurance on
their vehicles. This formula does not accurately represent the Kirks’
compensation from Respondent. Since it is clear they were obligated to
pay insurance from their paychecks, only the actual amount deducted
from their pay accurately reflects their salary. The evidence shows that
both Edwin and Hildegard Kirk paid Respondent $390 per quarter for
In calculating Hildegard Kirk’s gross backpay, the Region
utilized her 1999 average $591.25 weekly rate since Hilde-
gard’s weekly rate had been reduced to $380 only a week be-
fore her termination. I find this formula is reasonable. Re-
spondent argues that there is no evidence to conclude that
Hildegard Kirk would have been restored to her previous
weekly rate of $591.25. However, there is evidence that Hilde-
gard had previously been granted a requested route change and
more importantly shortly before her termination, her supervisor
had promised Hildegard that her route would be supplemented
to get her back to where she had been originally. Given this
promise and past practice, it is reasonable to assume Hildegard
Kirk would have earned $591.25 per week if she had not been
unlawfully terminated.
c. Interim earnings
The Region offset interim expenses in computing interim
earnings for Edwin Kirk. For at least a portion of the time
Edwin had interim earnings they were the product of entrepre-
neurial self-employment. In calculating Edwin Kirk’s interim
earnings from self-employment, the Region used his Federal
Income Tax return to determine both his earnings and his oper-
ating expenses. This is the standard method in calculating in-
terim earnings from self-employment. NLRB Casehandling
Manual, Part Three, Compliance Proceedings, Section 10541.3.
See also Synergy Gas Corp., 302 NLRB 130 (1991). Respon-
dent contends that the standard deduction should have been
used both to calculate interim earnings and gross backpay. This
argument is fundamentally flawed since it assumes that both
Edwin and Hildegard Kirk were self-employed while working
for Respondent. This argument has long been settled by both
the Board and the court of appeals. Use of the standard deduc-
tion was appropriate to calculate Edwin Kirk’s interim earnngs
since he was self-employed during the backpay period. It would
be inappropriate, as noted above, to use the expenses from the
standard deduction to diminish the Kirk’s gross backpay when
they were Respondent’s employees. Since Respondent was
contesting only the formula for interim earnings and not their
accuracy, I find that Edwin Kirk’s interim expenses were ap-
propriately determined.
d. The backpay period ended October 3, 2002
The backpay period commenced with Respondent’s unlawful
terminations of Edwin and Hildegard Kirk on March 9, 1999.
Respondent contends that the Kirks abandoned interest in
working for Respondent. In support of this argument, Respon-
dent offered the letters dated January 26, 2003, the Kirk’s sent
to Respondent declining offers of reinstatement.8 In the letters
the Kirks both state that they cannot accept offers of reinstate-
ment since Bill Kennedy was still the site manager. Respon-
dent reasons that the Kirks must have abandoned their jobs,
since Kennedy has always been site manager and therefore
earlier offers of reinstatement would likewise have been re-
jected. There is no evidence that before Respondent’s October

insurance. The Kirks each paid $29.25 per quarter for pagers. GC
Exhs. 7 and 8.
8 See R. Exhs. 3 and 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894
3, 2002 offers of reinstatement, the Kirks in any way indicated
abandonment of their jobs.
The Board has long held that employee’s statements con-
cerning their desire for reinstatement made prior to a valid offer
of reinstatement are unreliable as an indicator of an employee’s
true interest in reinstatement. Big Three Industrial Gas &
Equipment Co., 263 NLRB 1189, 1203 (1982); Lyman Steel
Co., 246 NLRB 712, 714 (1979). Until a valid offer of rein-
statement has been tendered, the discriminatee’s intent cannot
be discerned. While it is clear that the Kirks declined offers of
reinstatement after October 3, 2002, there is no evidence of
what their intent was prior to that time. I find no probative
evidence that supports a conclusion the Kirks abandoned their
jobs with Respondent prior to October 3, 2002.
On these findings of fact and conclusions of law, and on the
entire record, and I issue the following recommended9

9 In the event no exceptions are filed as provided by Sec.102.46 of
the Board’s Rules and Regulations, the findings, conclusion, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ORDER
It is hereby ordered that Respondent, Velocity Express, Inc.,
formerly known as Corporate Express Delivery Systems,
forthwith pay to each of the following persons backpay in the
amounts set opposite their name, plus interest computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), as required by the Board’s Order of De-
cember 19, 2000:

Edwin Kirk $136,818.13

Hildegard Kirk 12,000.37

TOTAL NET BACKPAY $148,818.50