Boyer Ford Trucks

National Labor Relations Board - Board Decisions

Jun 12, 1984

270 N.L.R.B. 1133 (N.L.R.B. 1984)

BOYER FORD TRUCKS
Boyer Ford Trucks, Inc. and Professional Truck
Salespersons Association. Case 18-CA-6508
12 June 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 14 April 1983 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
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 briefs' and
has decided to affirm the judge's rulings, findings,
and conclusions as modified herein, and to adopt
the recommended Order as modified.
The judge found that Joseph E. Chesla is enti-
tled to car and gasoline allowances which he
would have received had he remained in the Re-
spondent's employ. Thus, she included in his back-
pay S3950 as a car allowance, and $1250 as a gaso-
line allowance, for the time periods covered by the
backpay specification. The judge included these
amounts because she concluded that both allow-
ances were perquisites of employment,2 rather that
reimbursements for job-related expenses. The Re-
spondent excepts to the judge's conclusion that
these allowances are compensable as perquisites of
Chesla's employment. We find merit to the Re-
spondent's exception with respect to these allow-
ances.
Philip Maas, the Respondent's president, testified
that the Respondent provided each salesman with a
vehicle or else it provided an allowance s to reim-
burse the salesman for expenses of operating his
own car while calling on customers to try to sell
the Respondent's trucks. Maas stated that, while
the Respondent required no mileage verification or
vouchers of business usage from the salesperson in
order for him to receive the car allowance, the Re-
spondent's management "at all times was monitor-
' The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
a The judge noted that the Board has found demonstrator automobiles
to be compensable items in backpay proceedings, where the cars are fur-
nished as a perquisite of employment and not as a selling tool. Folk Chev-
rolet, 176 NLRB 277 (1969), and other cases cited at fn, 19 of her deci-
sion.
3 The allowance, according to Mass, varied at different times between
$150 and $250 per month, and the Respondent at the time of the hearing
was not paying anything for a car allowance.
270 NLRB No. 161
ing the calling that the salesman was out doing and
the accounts they were calling on and the meetings
they were having." Likewise, with respect to a
$50-per-month gasoline allowance which the sales-
men received, the Respondent did not require veri-
fication of how much of the gasoline was used in
making business calls, but did require receipts
showing $50 of gasoline purchases in order to re-
ceive the full monthly allowance.
Because the judge found that there was appar-
ently no restriction on the salesmen that they use
their cars or buy gasoline only for business pur-
poses, and no evidence that the Respondent at-
tempted to ascertain the amount salesmen used
their cars in the course of business, she concluded
that the allowances were perquisites of employ-
ment. We cannot agree that the fact that the Re-
spondent gave the allowance without requiring de-
tailed proof each month of all business use renders
the allowances perquisites rather than reimburse-
ments. The salesmen needed automobiles in order
to perform their job functions, and Maas testified
without contradiction that the salesmen's activities
were monitored by the Respondent. The Respond-
ent may well have found it more administratively
convenient and/or economical simply to give what
it estimated as reasonable allowances than to go
through the detailed paperwork of requiring and
assessing proof of exact business usage each month.
We therefore find, contrary to the judge, that
the Respondent's automobile and gasoline allow-
ances are reimbursements for job-related expenses
which Chesla did not have when not employed by
the Respondent.4 Accordingly, we shall modify the
judge's recommended Order by deducting those al-
lowances from Chesla's recommended backpay.5
ORDER
The National Labor Relations Board orders that
the Respondent, Boyer Ford Trucks, Inc., Minne-
apolis, Minnesota, its officers, agents, successors,
and assigns, shall satisfy its obligation to make
whole Joseph E. Chesla through 31 December
1981 by the payment of the amount of $80,385 as
* Member Zimmerman, unlike his colleagues, would adopt the judge's
inclusion of car and gasoline allowances in backpay. Here, the Respond-
ent's president, Philip Maas, testified that the Respondent paid the month-
ly car allowance with the submission of a voucher no matter how much
or how little he used the car in that particular month. Likewise, with re-
spect to the $50 gasoline payment, Maas testified that the Respondent re-
quired gas receipts for up to $50, but did not require the salesperson to
submit mileage claims and had no method of verifying how many miles a
salesperson put on a car during the month. Under these circumstances,
Member Zimmerman agrees with the judge that the allowances are per-
quisites of employment, rather than expense reimbursements, and should
be included in backpay.
s Thus, we have deducted $3950 of car allowances, and $1250 of gaso-
line allowances, from the $85.585 of total backpay recommended by the
judge.
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
net backpay. The foregoing amount shall be paid
plus interest thereon accrued to the date of pay-
ment, computed in the manner prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977),6 minus any
tax withholding required by Federal or state laws.
a See generally Isis Plumbing Co., 138 NLRB 716 (1962).
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge.
On March 13, 1981, the National Labor Relations Board
issued its Decision and Order' in the above-entitled pro-
ceeding in which it directed Boyer Ford Trucks, Inc.,
herein called Respondent, its officers, agents, successors,
and assigns, to, inter alia, offer reinstatement to and make
whole employee Joseph E. Cheslaa for any loss of pay
resulting from Respondent's discrimination against him.
The Board's Decision and Order was enforced by a con-
sent judgment of the United States Court of Appeals for
the Eighth Circuit dated August 26, 1981.
A controversy having arisen over the amount of back-
pay due to Chesla, the Regional Director for Region 18
of the Board, on March 22, 1982, issued and duly served
on Respondent a backpay specification and notice of
hearing, setting forth the amount of backpay allegedly
due under the Board's Order. Respondent filed an
answer dated March 30, 1982, admitting certain allega-
tions of the specification and denying others.
A hearing was held before me in Minneapolis, Minne-
sota, on September 28, 1982. Following the hearing, the
General Counsel and Respondent filed briefs, which
have been considered.
Upon the entire record in the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS AND CONCLUSIONS
I. BACKGROUND; THE ISSUES
Respondent is a retail and wholesale truck dealer lo-
cated in Minneapolis, Minnesota. Prior to his discharge
on November 26, 1979, discriminatee Joseph E. Chesla
had worked for Respondent as a commission salesman
for 8 years. It is essentially undisputed that Chesla was
primarily a fleet salesman, i.e., he maintained a continu-
ing business relationship with his customers and sold
each of his customers anywhere from 10 to 80 trucks per
year, as opposed to retail salesmen who serviced custom-
ers who purchased perhaps I or 2 trucks or salesmen
who primarily sold used trucks. However, as discussed
below, there is some dispute as to whether Chesla re-
fused to make any but fleet sales and, assuming such a
refusal, whether, in light of various factors, Chesla
254 NLRB 1389.
sApparently through inadvertence, the notice appended to the Board's
Decision mistakenly referred to Chesla as "James E. Chesla."
would have continued to refuse to make any but fleet
sales had he not been discharged.
The primary issues, as framed by the specification, the
answer, and at the hearing, 3 are (1) whether statements
made by then counsel for Respondent at the unfair labor
practice hearing constituted a valid offer of reinstatement
to Chesla; (2) whether the formula used by the General
Counsel to determine Chesla's gross backpay is appropri-
ate; (3) whether Chesla is entitled to the car and gasoline
allowances he would have received had he remained in
Respondent's employ; (4) the amount of pension and
profit-sharing contributions which Chesla should be
awarded; (5) whether Chesla should receive any backpay
for the fourth calendar quarter of 1979; 4 (6) whether cer-
tain payments made to Chesla by Respondent following
his discharge should be considered as interim earnings;
and (7) whether certain "chargebacks" from sales made
I The answer does not contain any figures or computations, but gener-
ally denies the appropriateness of the formula used in the backpay specifi-
cation and sets forth the premises underlying the formulas which Re-
spondent contends should have been used. However, the General Coun-
sel did not allege that the answer failed to meet the requirements set
forth in the Board's rules and regulations for answers to backpay specifi-
cations. Specifically, Sec. 102.54 of the Board's Rules and Regulations
provides, in pertinent part:
(b) . . . The answer to the specification shall be in writing, the
original being signed and sworn to by the respondent or by a duly
authorized agent with appropriate power of attorney affixed, and
shall contain the post office address of the respondent. The respond-
ent shall specifically admit, deny, or explain each and every allega-
tion of the specification, unless the respondent is without knowledge,
in which case the respondent shall so state, such statement operating
as a denial. Denials shall fairly meet the substance of the allegations
of the specification denied. When a respondent intends to deny only
a part of an allegation, the respondent shall specify so much of it as
is true and shall deny only the remainder. As to all matters within
the knowledge of the respondent, including but not limited to the
various factors entering into the computation of gross backpay, a
general denial shall not suffice. As to such matters, if the respondent
disputes either the accuracy of the figures in the specification or the
premises on which they are based, he shall specifically state the basis
for his disagreement, setting forth in detail his position as to the ap-
plicable premises and furnishing the appropriate supporting figures.
(c) . . . If the respondent files an answer to the specification but
fails to deny any allegation of the specification in the manner re-
quired by subsection (b) of this section, and the failure so to deny is
not adequately explained, such allegation shall be deemed to be ad-
mitted to be true, and may be so found by the Board without the
taking of evidence supporting such allegation, and the respondent
shall be precluded from introducing any evidence controverting said
allegation.
The General Counsel did not allege at the hearing that the answer was
inadequate or that any of the allegations in the answer should be stricken.
Consequently, I consider it appropriate to treat the answer as putting all
matters it raised, including the appropriateness of the formula used to
compute backpay, in issue. At the hearing, Respondent offered into evi-
dence exhibits showing alternative computations based on the formulas it
had alleged in the answer were more appropriate than that used in the
backpay specification. The General Counsel objected to the admission
into evidence of these exhibits on grounds that the computation should
have appeared in the answer. However, inasmuch as there was no con-
tention prior to the offer of these exhibits that the answer did not proper-
ly put the appropriateness of the backpay formula into issue, I admitted
the exhibits into evidence as showing the consequences of using the for-
mulas proposed by Respondent. I adhere to that ruling.
4 Respondent raised this issue for the first time at the hearing. Howev-
er, there is no contention that Respondent is precluded from litigating
this issue because it was not alleged in its matter, and, consequently, I
consider this issue, as well as those alleged in the answer, to be properly
before me.
1134
BOYER FORD TRUCKS
by Chesla prior to his discharge should be offset against
his backpay.
II. THE ALLEGED OFFER OF REINSTATEMENT
A. The Evidence
The backpay specification alleges that no valid offer of
reinstatement was made to Chesla and that backpay
therefore continued to accrue throughout the period
covered by the specification: November 26, 1979 (the
day Chesla was discharged), through December 31, 1981.
Respondent contends that on July 1, 1980,5 the second
day of the hearing in the unfair labor practice proceed-
ing, Respondent's then counsel, David Morse, made an
unconditional offer of reinstatement to Chesla which
tolled backpay. In support of this contention, Respond-
ent offered into evidence a portion of the transcript in
that proceeding which reads, in pertinent part, as fol-
lows:
MR. MORSE: Before we begin this morning, Your
Honor, yesterday we had some discussion off the
record about an offer of reinstatement that was
made by the respondent to Mr. Chesla. I indicated
to you at that time that we would like it placed on
the record today.
The reason I did not do it yesterday is that I was
uncertain as to the perimeters because of the unique
situation we are dealing here with in the form of
commissioned salesmen.
At this particular time, we would put on the
record the offer of reinstatement of employer [sic]
to the discriminatee, Mr. Chesla, that was made yes-
terday. That would include reinstatement under the
terms of the existing pay plan as of November 26,
1979, up through and including the date of the new
collective bargaining agreement at which time the
reinstatement would be subject to the terms and
conditions of-
THE JUDGE (interrupting): If he goes back to
work today, he goes back to work under the terms
and conditions that exist today.
MR. MORSE: Bargaining agreement, that is right.
As near as I can tell, by looking at the figures
that are available from the company records, had
Mr. Chesla remained in the employment of respond-
ent, he would have received a draw of $1,200 per
month against commissions.
THE JUDGE: You don't have to put that on the
record. Just give me a bottom line figure. You don't
even have to do that. If you are offering back pay,
just tell us.
MR. MORSE: I guess maybe to simplify it, Your
Honor, what we would do is be willing to offer
back pay and would make available to the Board of
the NLRB such records as would be necessary in
order to determine what, exactly that would be.
THE JUDGE: You are not prepared to make a
lump sum offer at this point?
* All dates in this section of this decision are 1980 unless otherwise in-
dicated.
MR. MORSE: We offered, yesterday, the net effect
of the draws that he would have gotten under the
old plan and the new plan less what he under-
stood-
THE JUDGE (interrupting): Are you willing to put
on the record a lump sum offer?
MR. MORSE: Yes.
THE JUDGE: What is that offer?
MR. MORSE: Per the records that we have, the
lump sum taking into consideration the draws that
he got at Lakeland [an interim employer], based on
the activity of his account and the commissions he
would have earned from sales that have come in,
we believe he would have netted out, including the
Lakeland draw, approximately $4,170 through June
30 of 1980.
THE JUDGE: You make that offer at this time.
MR. MORSE: We make that offer of reinstatement
and $4,170.
THE JUDGE: Is that what you are saying?
MR. MORSE: In addition, the offer is there to
make available to the Board and to work with the
Board's representatives on records that are available
to determine exactly to the penny what that amount
would have been.
We believe at this time it would have been
$4,170.
THE JUDGE: Very well, you have made your
record. Let's get on with the cross-examination.
It is undisputed that on the first day of the unfair labor
practice hearing, June 30, the parties discussed the possi-
bility of settling the case. Morse testified at the instant
hearing that, in the course of the discussions regarding
Chesla's earnings while employed by Respondent, the
Administrative Law Judge calculated on the basis of
Chesla's earnings the previous year that the backpay
figure would be $35,000 or $38,000.s Morse further testi-
fied that, on June 30:
. . . all the discussions were predicated upon what I
would call a walk-away settlement, namely that Mr.
Chesla was not interested in coming back to work
at Boyer and would decline reinstatement and
Boyer would make him full in terms of loss of earn-
ings. We got into some extensive discussions about
how to calculate backpay in a situation like this
According to Morse, after some further conversation
with the Administrative Law Judge he said that he
would discuss with Philip Maas, Respondent's president,
the prospect of making an offer of reinstatement, and
that Respondent would prefer to make such an offer on
the record. When Morse was asked on cross-examination
whether he had expressed opposition to reinstating
6 Morse first testified that the General Counsel took the position that
Chesla's earnings for the previous year should be divided by 12 and then
multiplied by the number of months he had been out of work, thus arriv-
ing at this total. However, in response to another question a few minutes
later, Morse ascribed to the Administrative Law Judge this method of
calculating the amount of backpay owed.
-
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chesla during those discussions, Morse first responded
that Respondent knew that Chesla had another job and
had been advised that he did not want to return to work
and that "I think it is obvious any time you have had a
disagreement between an employer and employee it is
not the best situation for them to get back together
under the circumstances." When asked again whether he
had expressed to Everett Rotenberry, counsel for the
General Counsel in the unfair labor practice proceeding,
Respondent's opposition to reinstating Chesla, Morse
said, "I don't know whether we expressed an opposition
to him coming back to work, we did know that if an
offer of reinstatement was made and if Mr. Chesla ac-
cepted it, obviously he would come back to work at
Boyer." Morse further testified that on the evening of
June 30 he suggested to Maas that Respondent offer
Chesla reinstatement, that Maas told him to do so, and
that Morse advised his client that if Chesla accepted the
offer he would be coming back to work for Respondent.
Finally, Morse testified-that when he made the offer of
reinstatement and $4170 backpay on July I he intended
them as separate elements of the offer and did not intend
to condition the offer of reinstatement on the acceptance
of any specific backpay figure.
Rotenberry testified at the hearing before me that just
before the unfair labor practice hearing opened on June
30 Morse said that Respondent would place an offer of
settlement on the record at the close of the General
Counsel's case but that Morse did not in fact do so. Ro-
tenberry also testified that during settlement discussions
on June 30 Morse said that Respondent did not want to
reemploy Chesla and that if reinstatement were required
there would be no settlement. According to Rotenberry,
he told Morse during a discussion between the two of
them on June 30 that there was no need for Respondent
to make an offer of reinstatement to Chesla because he
did not want to return to Respondent's employ and that
the General Counsel would settle for $35,000 in backpay,
excluding interest and contributions to the pension and
profit-sharing plans. Still according to Rotenberry,
Morse replied that Respondent was not prepared to pay
that sum, that Chesla owed Respondent about $60,000,
and that Respondent would not pay any backpay. At
that point the Administrative Law Judge entered the dis-
cussions and made several proposals, eventually asking
Morse if Respondent would be willing to pay $9,000.
Morse replied that Respondent would not pay that
amount. Rotenberry further testified that Morse's final
offer with regard to backpay on June 30 was about
$3900, and that Morse said that Respondent would make
records available to the Board to verify that that amount
was appropriate.
According to Rotenberry, as a result of the discussions
on June 30, when Morse referred on the record on July
I to an offer of reinstatement, he wondered what Morse
was talking about, but when Morse referred to offering
$4170 in backpay Rotenberry concluded that Morse was
proposing to increase the amount of backpay Respondent
was willing to pay by $200. Rotenberry also testified that
he considered the offer of reinstatement as being condi-
tioned upon the acceptance of the backpay offer and that
Morse was offering Respondent's records to verify the
amount of money that Respondent had determined was
owed to Chesla.
B. Analysis and Conclusions
Respondent argues that Morse's offer on the record
was a valid and unconditional offer of reinstatement to
Chesla's former position which tolls backpay as of July
1, 1980. According to Respondent, the transcript of the
hearing of that date establishes that Morse offered Chesla
reinstatement on behalf of Respondent and that Morse
made the backpay offer only after he was asked by the
Administrative Law Judge to state an amount, and thus
the offer of reinstatement cannot be construed as being
conditioned upon acceptance of the backpay offer. Re-
spondent further contends that if Rotenberry did not un-
derstand that Respondent was offering unconditional re-
instatement at that time he should have asked Morse to
clarify what he was saying. The General Counsel, how-
ever, contends that the statement in the record must be
construed in light of the discussions the day before and
that, when so construed, Morse's statement on the record
did not constitute a valid offer of reinstatement. I agree
with the General Counsel.
It is well established that an offer of reinstatement
must be wholly unconditional in order to be valid,7 and
it is equally well established that "since Respondent is
the wrongdoer responsible for the existence of any un-
certainty the uncertainty must be resolved against it."
In the instant case, I credit Rotenberry's testimony that
on June 30 Morse explicitly stated that Respondent
would not settle the case if it were required to offer
Chesla reinstatement. g Nonetheless, on July 1, Morse re-
ferred initially to an offer of reinstatement "that was
made" to Chesla, and again to an offer of reinstatement
to Chesla "that was made yesterday," and then said, "we
make that offer of reinstatement and $4170," even
though Morse conceded at the hearing before me that in
fact no offer of reinstatement had been previously made
to Chesla. Thus, Morse's references to offers that were
made or the offer that had been made "yesterday" are at
best ambiguous and, consequently, cannot be considered
a valid offer of reinstatement.
I further find that Morse's later reference on July I to
an "offer of reinstatement and $4,170" was also not a
valid unconditional offer of reinstatement. It is clear
from the findings above with regard to the discussions of
June 30 that Respondent was willing to offer reinstate-
ment to Chesla only as part of an overall settlement of
the unfair labor practice charges and with the under-
standing that the offer would be declined. Thereafter, on
July 1 Morse did not make it clear that he was offering
reinstatement unconditionally with the amount of back-
pay to be left open.1 0 Indeed, Morse explained that the
Tri-State Truck Service, 241 NLRB 225 (1979), enf. denied on other
grounds 616 F.2d 65 (3d Cir. 1980).
Avon Convalescent Center, 219 NLRB 1210, 1213 fn. 17 (1975).
' Indeed, Morse did not deny that he made the statements Rotenberry
attributed to him, but gave unresponsive answers when questioned on the
subject under cross-examination by the General Counsel.
'0 As the Board held in Consolidated Freightways, 253 NLRB 988
(1981), a refusal to include an offer of backpay with an offer of reinstate.
Continued
1136
BOYER FORD TRUCKS
amount Respondent offered was based on Chesla's draw
from Respondent less interim earnings, and thus Re-
spondent was not taking into account the commissions
Chesla would have earned from sales had he continued
to work for Respondent. In these circumstances, Morse's
offer to make Respondent's records available was fairly
interpreted by Rotenberry as an offer to verify the sum
which Respondent had already decided it was willing to
pay, not an offer to determine an appropriate formula for
ascertaining how much backpay was due and then use
the records to calculate the amount pursuant to that for-
mula.
As indicated above, the burden was on Respondent to
make a clear and unambiguous offer. Inasmuch as the
offer made on the record" could reasonably be inter-
preted as an offer of reinstatement conditioned upon ac-
ceptance of the backpay offer, I conclude that Respond-
ent did not meet its burden and that the offer as made
did not serve to toll backpay.1' I therefore find, as al-
leged in the specification, that the backpay period at
issue here was from November 26, 1979, to December
31, 1981.
111. THE FORMULA FOR COMPUTING GROSS BACKPAY
A. The General Counsel's Formula
The backpay specification alleges that an appropriate
measure of what Chesla would have earned during the
backpay period can be obtained by determining the ratio
of Chesla's earnings for 1979 to the average of the earn-
ings of three other named salesmen for that year and
then multiplying the average earnings of the group in
each quarter of the backpay period by that ratio. James
Miller, the compliance supervisor who prepared the
specification, credibly testified that he considered using
other formulas for determining the amount of backpay
due to Chesla, but determined that none of those formu-
las was appropriate, either because the formulas did not
consider the special circumstances inherent in the posi-
tion of commissioned salesmen as opposed to a salaried
or hourly employee, because an examination of Respond-
ent's records revealed that the commissioned salesmen
ment does not render the latter offer inadequate. However, the question
here is not whether Respondent was required to offer backpay at the
time it purportedly offered reinstatement but whether the offer of rein-
statement was conditioned upon Chesla's acceptance of the amount of
backpay Respondent had calculated was due him.
"1 In view of my findings as to what occurred on June 30, 1 find it
unnecessary to determine whether Maas in fact told Morse to make an
unconditional offer of reinstatement on July I for, even if that conversa-
tion occurred as Morse described it, there is no evidence that that inten-
tion was communicated to the General Counsel prior to the statement
being made on the record on July I and, thus, no reason for the General
Counsel to believe that Respondent's position had changed from that
taken the preceding day that under no circumstances would Respondent
be willing to take Chesla back.
" I also disagree with Respondent that the General Counsel was obli-
gated to seek clarification of the offer. The burden is on Respondent to
make a valid unconditional offer of reinstatement, not on the General
Counsel to make sure that Respondent's offer is couched in the proper
terms or to clarify an offer which is not. Respondent was represented by
counsel, and the General Counsel, in his role as advocate in an unfair
labor practice hearing, is not obligated to advise an opposing party, par-
ticularly an opposing party represented by counsel, how to achieve that
party's desired end.
did not have a uniform earnings record, or because the
formulas did not take into consideration the economic
conditions in the industry during the backpay period.
Miller further credibly testified that there were no sales-
men who sold exclusively on a fleet basis during the
entire backpay period and that the three salesmen he de-
termined to comprise the representative group, Darrell
Anderson, Dale Smith, and Ralph Ziesmer, were select-
ed because of their length of employment, the nature of
their sales, and the fact that they all remained in Re-
spondent's employ throughout the backpay period.
Appendix A to the backpay specification, which sets
out Miller's calculations pursuant to this formula and
which was stipulated by the parties to be accurate,
shows that in 1977 Chesla earned $63,346.36, that the av-
erage of the total earnings of Anderson, Smith, and
Ziesmer was $23,672.21, and that, accordingly, the ratio
of Chesla's earnings to the average of the earnings of the
three other salesmen for that year was 2.67 to I. In 1978
Chesla earned $54,897.80, or 1.61 times the average earn-
ings of the other three salesmen considered, and in 1979
Chesla earned $66,265.37 or 1.51 times the average earn-
ings of the group of $43,819.75. s3 Miller credibly testi-
fied that it was obvious from his examination of Re-
spondent's records that Chesla earned substantially more
than other commissioned salesmen and that he used the
ratio for 1979, which was the lowest ratio between Ches-
la's earnings and those of the other three salesmen.
B. Respondent's Formulas
It is undisputed that sales of trucks severely declined
in 1980 and 1981 from 1979 levels, and that much of that
decline was in fleet sales. Respondent contends that the
General Counsel's formula ignores both the overall de-
cline in truck sales, particularly fleet sales, since 1979,
and what Respondent contends is the fact that Chesla
was exclusively a fleet salesman. Respondent further
contends that various other formulas would provide a
more appropriate measure of what Chesla would have
earned had he continued as an employee of Respondent
throughout the backpay period.
1. Chesla's commissions earned after his discharge
from the same customers he serviced while
employed by Respondent
Respondent contends that, because each fleet salesman
had his own accounts which he serviced and the sales-
men were not permitted to make sales to accounts as-
signed to someone else, Chesla could have continued to
service the same customers after his discharge and thus is
not entitled to any backpay at all. In support of this con-
tention, Respondent cites Chesla's testimony in the unfair
labor practice hearing on July 1, 1980, to the effect that
before his discharge he considered leaving Respondent's
employ and, in the event he did so, wanted his customers
to deal with him in the future rather than with Respond-
ent. Thus, according to Respondent, Chesla could have
13 The calculations for the fourth quarter of 1979 are based on Ches-
la's actual receipts, and do not take into consideration that he was dis-
charged a month before the end of the year.
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made the same sales whether employed by Respondent
or not.
2. The commissions earned on Respondent's sales to
Chesla's accounts after his discharge
Respondent contends that a second acceptable alterna-
tive approach to the formula used in the backpay specifi-
cation would be to pay Chesla the amount of commis-
sions earned by Respondent's sales to his former ac-
counts after his discharge. In support of this proposed
method, Respondent contends that these sales would
have been made by Chesla had he remained in Respond-
ent's employ and that there is no evidence that he would
have been able to sell any more trucks than were sold by
other salesmen employed by Respondent during the
backpay period.
3. Commissions on fleet sales made by salesmen in
the representative group
As its final contention with respect to the formula used
to compute backpay, Respondent argues that, if Chesla's
predischarge earnings are to be compared with the earn-
ings of other salesmen during the backpay period, the
comparison should be only with the latter's earnings
from fleet sales inasmuch as Chesla sold exclusively to
fleets. Use of this formula, according to Respondent's
computations, results in a ratio of Chesla's earnings to
average earnings of the representative group of 3.08.
However, since the commissions from fleet sales com-
prised less than half the average total earnings of the
members of the group for all except two of the calendar
quarters in the backpay period,1 4 that ratio is applied to
a lower dollar amount. Consequently, the gross backpay
calculated pursuant to Respondent's formula is consider-
ably less than that calculated under the formula set forth
in the backpay specification.
C. Conclusions
It is clear that the Board is not required to attain
mathematical precision in its formula for determining
gross backpay. On the contrary, "it is well established
that any formula which approximates what discrimina-
tees would have earned if they had not been discriminat-
ed against is acceptable if it is not unreasonable or arbi-
trary in the circumstances . .. ."1
As Respondent points out, Chesla testified in the unfair
labor practice proceeding that he did not do floor duty,
which may be interpreted as meaning that he did not
make himself available for retail sales, and that he pre-
ferred not to do floor duty or to sell used trucks, and,
thus, according to Respondent, only a backpay formula
which is based solely on fleet sales by either Chesla or
other salesmen can be considered appropriate. However,
"4 In 1979 fleet commissions were 49 percent of the average total earn-
ings of the group of three salesmen; in the third quarter of 1980 fleet sales
were 54 percent of the total average earnings and in the fourth quarter of
1980 fleet sales commissions comprised 46 percent of the total average
earnings of that group; but in the other calendar quarters of the backpay
period commissions on fleet sales were between 23 and 38 percent of the
total earnings of the group.
1s Am-Del-Co., 234 NLRB 1040, 1042 (1978).
it is undisputed that retail and used truck sales are more
profitable for Respondent than fleet sales. It is also undis-
puted that, in order to provide salesmen with an incen-
tive for making retail and used truck sales, Respondent in
late 1979 and thereafter sought to and eventually did
reduce the rate of commission on fleet truck sales as
compared to sales to nonfleet customers. Notwithstand-
ing this change in the commission rate for fleet sales, all
of Respondent's formulas are based on the assumption,
totally without support in this record, that Chesla would
have continued to sell only to fleet customers even in the
face of considerably reduced earnings from such sales. In
addition, as the General Counsel asserts, Respondent's
formulas ignore Chesla's individual drive and initiative
which, presumably, made him one of Respondent's out-
standing salesmen in the first place, and also ignore the
questions of what fleet sales might have been made by
Respondent had Chesla continued to work there. As the
General Counsel points out, the ratio chosen for comput-
ing what Chesla would have earned during the backpay
period in comparison to the earnings of the other three
salesmen during that period was the lowest of those
available for the years 1977, 1978, and 1979. In addition,
the General Counsel's formula takes into account the fact
that Respondent's sales declined, for the ratio of Chesla's
earnings to the average earnings of the other salesmen is
applied to their lower earnings during the backpay
period. In light of these considerations, and as the formu-
la utilized in the backpay specification has been found to
be appropriate in other, similar cases,1 6 I conclude that
the General Counsel has established that the use of such
a formula is appropriate in the instant case and that Re-
spondent has not demonstrated that the formulas it pro-
poses would result in a more accurate approximation of
what Chesla would have earned had he continued to
work for Respondent during the backpay period.
IV. BACKPAY FOR THE FOURTH QUARTER OF 1979
It is undisputed that Respondent considers a truck sold
and the salesman's commission earned when the custom-
er pays for the truck, and that commissions are paid the
second Tuesday of the month following consummation
of the sale. Thus, for example, if a customer pays for a
truck on January I the salesman receives his commission
for that sale on the second Tuesday in February. Re-
spondent contends that Chesla was paid in December for
all commissions earned by him in November and that,
consequently, he was paid all that was owed him for the
fourth quarter of 1979 and no backpay should be award-
ed for that quarter. It appears that the figures in the
specification and the appendix for 1977, 1978, and
through November 1979 all refer to amounts received by
Chesla or the other salesmen rather than amounts earned
but not yet paid. Thus, for example, if a truck sold by
Ziesmer was paid for by the customer in December 1979,
Ziesmer's commission on that sale would be payable to
him in January 1980 and thus not be included in the cal-
culations for 1979. In these circumstances, there is merit,
at least in part, to Respondent's argument that the
'6 See, e.g., Folk Chevrolet, 176 NLRB 277, 279-280 (1969).
1138
BOYER FORD TRUCKS
moneys owed to Chesla in 1979 were paid to him, be-
cause any trucks that he might have sold during the last
week of November or during the month of December
would not have been paid for until sometime in 1980,
and, thus, Chesla would not have received any commis-
sions for those sales in 1979.' 7
The General Counsel argues that the backpay specifi-
cation, which calls for a payment in December 1979 in
lieu of payment for the last month of the backpay period,
best measures Respondent's liability. However, this for-
mula does not take into account the fact that truck sales
declined in 1980 and 1981 and, consequently, that in all
probability the last month of the backpay period was one
in which Chesla would have earned less than he earned
in November 1979. In addition, if commissions from sales
Chesla would have made during the period between No-
vember 26 and the end of the year are treated as re-
ceived during that period, interest thereon would run
from an earlier and inappropriate date. Accordingly, I
find that Respondent has paid Chesla the commissions he
earned in November 1979 and that Chesla would not
have received any other commissions in December of
that year. However, since a backpay period is based on
how long an employee would have worked as opposed
to how, long he would have received payment for his
work, it is clear that Chesla must ultimately be paid com-
missions which he would have earned in the last month
of the backpay period and would have received the fol-
lowing month.
V. CHESLA'S ENTITLEMENT TO VARIOUS FRINGE
BENEFITS
A. The Car and Gasoline Allowances
The specification alleges that Chesla is entitled to a
gasoline allowance of $50 per month for the entire back-
pay period and a car allowance of $200 per month for
the last month of 1979 and the first quarter of 1980 and
$150 per month for the rest of the backpay period. Re-
spondent admits that it has a policy of paying its sales-
men car and gasoline allowances, but asserts that the
purpose of these allowances was to reimburse the sales-
men for expenses incurred on the job. Thus, according to
Respondent, inasmuch as after Chesla was discharged he
had no expenses, he was not entitled to these benefits.
In support of this contention, Maas testified that the
car allowance was paid to salesmen for the use of their
own cars and was intended to reimburse them for the
cost of depreciation, service, and oil, and that Respond-
ent either provided the salesmen with a vehicle or gave
them the allowance, regardless of how much they used
the car in any given month. Maas further testified that
" The General Counsel contends that Respondent's theory fails to
take into account that Chesla was discharged prior to the end of Novem-
ber 1979, and thus fails to award him any backpay for commissions he
would have earned the remainder of that month. However, since it ap-
pears that there was a substantial timelag between when an order for a
truck was placed and when the truck was paid for, it is unlikely that any
sales Chesla could have made in the last week of November would have
resulted in commissions paid in December.
," In addition to the fringe benefits discussed below, it is undisputed
that Chesla is entitled to S92 as reimbursement for health insurance pre-
miums.
the gasoline allowance was provided to reimburse the
salesmen for gasoline expenditures and that the salesmen
were required to submit receipts up to a maximum of $50
in order to obtain the reimbursement; if a salesman spent
less than $50 in a given month for gasoline he was reim-
bursed for the amount he actually spent.
The Board has held, with court approval, that demon-
strator automobiles are compensable items in backpay
proceedings, where the cars are furnished as a perquisite
of employment and not as a selling tool. '
In the instant case, although Maas testified that the
purpose of the car and gasoline allowances was to reim-
burse the salesmen for the cost of using their own cars
for business purposes, there was apparently no restriction
on the salesmen that they use their cars or buy gasoline
only for business purposes, nor is there any evidence as
to how much Chesla or other salesmen used their cars in
the course of their work. Maas conceded that salesmen
were not required to submit mileage claims in order to
receive the gasoline allowance, but testified that the sales
manager monitored the salesmen's calls; nonetheless,
there is no evidence that Respondent ever undertook to
ascertain that a salesman used all the gasoline for which
he claimed reimbursement in making sales calls. In these
circumstances, I find that both the car and the gasoline
allowances were perquisites of the salesmen's employ-
ment. Accordingly, I conclude that these allowances
were benefits which Chesla would have continued to re-
ceive had he remained in Respondent's employ and were
properly included in the backpay specification.20
B. Pension Contributions
It appears that Respondent contributed an amount
equal to 2 percent of a salesman's commissions to the
National Automobile Dealers and Associates Retirement
Trust Pension and Profit Sharing Plan. Having found
that the adjusted average gross backpay for the years
1980 and 1981 is as set forth in the backpay specification,
I shall recommend that Respondent be ordered to pay
the amounts set forth in the specification, $1069 in 1980
and $1068 in 1981, as pension contributions for those
years. As I have found above that Chesla is not owed
any backpay for the fourth quarter of 1979, I shall rec-
ommend that Respondent not be required to make any
pension contribution for that quarter. However, as noted
above with respect to gross backpay, ultimately Re-
spondent will be required to make pension contributions
based on commissions Chesla would have received after
the end of the backpay period for sales he would have
made during that period.
I' Folk Chevrolet, supra at 278. See also DeLorean Cadillac, 231 NLRB
329, 333 (1977), enfd. in pertinent part 614 F.2d 554 (6th Cir. 1980);
Nickey Chevrolet Sales, 195 NLRB 395 (1972), enfd. 493 F.2d 103 (7th
Cir. 1974).
20 I recognize that the salesmen did not receive the full S50-per-month
gasoline allowance in those months in which they did not present re-
ceipts totaling the full S50. However, Respondent neither contends nor
adduces evidence that if Chesla had remained in its employ he would
have received less than the $50 each month and I therefore conclude that
the backpay specification appropriately includes the maximum gasoline
allowance.
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Profit-Sharing Contribution
The backpay specification alleges that Chesla is enti-
tled to profit-sharing contributions of an unknown
amount. Respondent does not contend that profit-sharing
contributions should not be included in the backpay
owed to Chesla, but contends that he received the con-
tributions owed to him for the year 1979, that no profit-
sharing contributions were made on behalf of any em-
ployee in 1980, and that for 1981 Chesla should be paid
either $85.27 (based on Respondent's formula for gross
backpay based on sales to Chesla's accounts subsequent
to his discharge), or $453 (in accord with Respondent's
alternate formula for gross backpay based on fleet sales
by other salesmen).21
There is evidence that the profit-sharing contribution
is based on the proportion of commissions paid to an in-
dividual salesman as compared to Respondent's total
payroll. Inasmuch as the gross backpay for 1981 as al-
leged in the backpay specification and as I have found
appropriate is $53,376, a somewhat larger amount than
the $31,330 on which Respondent's calculation of $453
for profit sharing is based, it appears that in fact the
amount of profit-sharing contribution which Chesla
would have received is greater than that alleged in Re-
spondent's alternate computation. However, as the back-
pay specification does not allege a specific amount, and
as the General Counsel has stated in his brief that the
profit-sharing amount of $453 is appropriate, I will rec-
ommend that that amount be paid to Chesla as the profit-
sharing contribution. s2
VI. DEDUCTIONS FROM GROSS BACKPAY
A. Interim Earnings
It is undisputed that Respondent paid Chesla a total of
$598.12 during the first quarter of 1980 and $252.69
during the second quarter of that year and that these
amounts were commissions on orders taken by Chesla
before his discharge. Respondent contends that these
sums must be considered interim earnings and deducted
from the gross backpay due him. In support of this con-
tention Respondent points out that, as already discussed
above, a commission is not earned until the truck is paid
for and, thus, these commissions were earned during the
backpay period. I agree.
As indicated by the discussion above with regard to
whether any backpay is due to Chesla for the fourth
quarter of 1979, there is some confusion generated by the
timelag between the date a salesman takes an order and
the date he receives his commission. As also indicated
above, a commission is earned not on the date the order
is taken but on the date the truck is paid for, and the
commission is paid to the salesman the following month.
"1 The amount of gross backpay Respondent alleges is due to Chesla
for 1981 according to each of its formulas is $8366 and S31,330, respec-
tively. The General Counsel contends in his brief that Chesla is owed
profit-sharing contributions of $453.
"a Apparently, there is no dispute that the profit-sharing contribution
to be made on Chesla's behalf for 1979 was paid to him in February or
March of that year and that in fact Respondent made no such contribu-
tions in 1980. Consequently, the only amount at issue is the contribution
which would have been made to Chesla's account in 1981.
Consequently, according to Respondent, because the
commission is earned when the truck is paid for, Chesla
continued to earn money from Respondent even after his
discharge. I have already found that the calculations in
the backpay specification are based on amounts received
by Chesla before his discharge and by the salesmen in
the representative group both before and after Chesla
was terminated. Thus, it is appropriate to consider com-
missions he received from Respondent following his dis-
charge as interim earnings, for both the gross backpay
figures and those for interim earnings as alleged in the
backpay specification are not based on work performed
during the backpay period, but, rather, on amounts re-
ceived during that period. I will therefore add to Ches-
la's interim earnings the sums he received from Respond-
ent during the backpay period.
B. Amounts Owed by Chesla to Respondent
Respondent introduced into evidence a document
which lists various sums known as "chargebacks" which
would have been offset against Chesla's commissions had
he remained in Respondent's employ. 2 3 It is undisputed
that these amounts would have been deducted from
Chesla's commissions had he remained in Respondent's
employ. However, as the General Counsel points out in
his brief, Maas conceded that chargebacks to the ac-
counts of the salesmen in the representative group (with
whose average earnings Chesla's were compared) were
taken into account in calculating their earnings as set
forth in the appendix to the backpay specification. Con-
sequently, as the General Counsel asserts, the average
used to calculate what Chesla would have received takes
into account the existence of chargebacks. Thus, to
deduct these amounts from Chesla's gross backpay
would be in effect to count these chargebacks against
him twice: once in computing the average and again by
deducting his own chargebacks from his gross backpay.
Accordingly, I will not recommend that the chargebacks
be deducted from Chesla's gross backpay.
VII. SUMMARY AND CONCLUSIONS
In view of the foregoing, I find that Chesla is entitled
to the following net backpay, plus interest:
Calendar Quarter
1980-I
1980-11I
1980-III
1980-IV
1981-1
1981-I1
1981-III
1981-IV
NetGrossGross Interim
Backpay EarningsEarnrings
Net
Backpay
$ 8,306 $ 598 S 7,708
9,529 2,493 7,036
16,563 2,529 14,034
19,062 2,575 16,487
8,871 3,117 5,754
14,838 3,865 10,973
13,866 8,661 5,205
15,801 5,295 10,506
S106,836 $29,133 $77,703
23 Specifically, Respondent contends that the following amounts
should be deducted from gross backpay: $641.79 for draw exceeding
commissions Chesla earned in December 1979; $775.46 resulting from the
sale of trade-ins at a loss; $37.80 as Chesla's share of a shortage on a pay-
ment by a customer for additional charges on trucks Chesla sold; S480 on
a chargeback of an incentive discount from Ford Motor Company;
$75.73 for equipment which cost more than Chesla quoted to a customer;
and $1,235.05 as Chesla's share of expenses on a car provided to a buyer
employed by one of his customers.
1140
BOYER FORD TRUCKS
In addition, Chesla is entitled to a car allowance of $200
for the fourth quarter of 1979 and for each of the first 3
months of 1980 and $150 for each of the remaining 9
months of that year and for each of the 12 months of
1981, or a total of $3,950; $50 gasoline allowance for
each of the 25 months of the backpay period or a total of
$1250; $92 in health insurance premium reimbursement;
pension contributions of $1069 for 1980 and $1,068 for
1981, or a total of $2137; and profit-sharing contributions
in the amount of $453. Thus, the grand total is $85,585
plus interest. 24
On these findings and conclusions of law and on the
entire record, I issue the following recommended 2 5
ORDER
The Respondent, Boyer Ford Trucks, Inc., Minneapo-
lis, Minnesota, its officers, agents, successors, and assigns,
shall satisfy its obligation to make whole Joseph E.
Chesla through December 31, 1981, by the payment of
the amount of $85,585 as net backpay. The foregoing
amount shall be paid plus interest thereon accrued to the
date of payment, computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).26
24 In addition, the parties stipulated that Chesla earned commissions
totaling $1,218.43 which became due to him during the backpay period
and which have not been paid to him by Respondent. In accordance with
my findings above with respect to amounts which were paid to Chesla
during the backpay period, this sum may be considered interim earnings
when it is eventually paid to him.
2' 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
Board and all objections to them shall be deemed waived for all pur-
poses.
2s See generally Isis Plumbing Co., 138 NLRB 716 (1962), minus any
tax withholding required by Federal or state laws
1141