Delorean Cadillac

National Labor Relations Board - Board Decisions

Aug 11, 1977

231 N.L.R.B. 329 (N.L.R.B. 1977)

DeLOREAN CADILLAC
DeLorean Cadillac, Inc. and Stanley Loch and Robert
Rice. Cases 8-CA-8492 and 8-CA-8504
August 11, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On April 13, 1977, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, DeLorean
Cadillac, Inc., Lakewood, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the Administrative Law Judge's recommended
Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
SUPPLEMENTAL DECISION AND ORDER
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge:
This supplemental proceeding to determine the amount of
backpay due Robert Rice and Stanley Loch, whose
employment was discriminatorily terminated by the Re-
spondent, was heard before me on November 16 and 17
and December 7 and 8, 1976, at Cleveland, Ohio, on the
backpay specification of the General Counsel issued July
30, 1976, and the Respondent's answer filed August 12,
1976.1 All parties were afforded full opportunity to be
The Order of the Board pursuant to which this hearing was held is
dated June 30, 1975 (218 NLRB 1362). and the consent judgment of the
Court of Appeals for the Sixth Circuit enforcing that Order is dated January
26, 1976 (unreported).
231 NLRB No. 62
heard, to introduce and to meet material evidence, and to
argue the issues orally on the record. On or about
December 21, 1976, the parties entered into a stipulation
concerning further certain facts, which was received by me
on December 27, 1976, and is accepted as part of the
record in the case. Brief were filed by the Respondent on
February 14, 1977, and by the General Counsel on
February 23, 1977, and have been considered.
On the record made before me, the stipulation, from my
observation of the witnesses, and consideration of the
contentions and arguments of counsel and the briefs, I
make the following findings.
The Issues
The case involves the amount of backpay or other relief
due, if any, to Robert Rice and Stanley Loch, who were
discriminatorily discharged by the Respondent on May 17,
and July 10, 1974, respectively. The principal issues are:
(I) Whether Rice could not get other employment
because he intended to go to Florida, and whether the
Respondent should therefore be relieved of any backpay
obligation to Rice.
(2) Whether Loch sustained a willful loss of earnings
throughout the entire backpay period.
(3) Whether Loch and Rice should be reimbursed for
hospitilization insurance premiums paid by them after their
discharges, and Rice reimbursed for the loss of use of a
demonstrator automobile.2
(4) What formula should be used for determining gross
backpay.
(5) Whether Loch received a proper offer of reinstate-
ment in August 1975 so as to terminate his backpay period
on or about August 11, 1975.
The backpay period for Rice begins May 17, 1974, the
day of his discharge by the Respondent, and ends July 15,
1974, when he received substantially equivalent employ-
ment, or decided to move permanently to Florida. Loch's
backpay period begins July 10, 1974, the date of his
discharge and, according to the General Counsel, ends
November 24, 1975, when he was reinstated. The Respon-
dent contends that Loch's backpay period ends August 7,
1975, when the Respondent assertedly offered Loch
reinstatement, which he refused.
The Applicable Principles
In a backpay proceeding, the burden is on the General
Counsel to show damage (that is, loss of earnings or other
income by the discriminatee) and the amount of gross
backpay due the discriminatee. The burden is on the
Respondent to establish diminution of his liability, such as
by reason of interim earnings, lack of work at the
discriminatee's place of employment, willful loss of wages,
or the discriminatee's unavailability for work. See, as
illustrative, Brown & Root, Inc., 311 F.2d 447 (1963), 327
F.2d 958 (C.A. 8, 1964); Mastro Plastics Corporation, 354
F.2d 170 (C.A. 2, 1965), cert. denied 384 U.S. 972 (1966);
2 Loch does not claim reimbursement for loss of use of a demonstrator.
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florence Printing Co., 376 F.2d 216 (C.A. 4, 1967), cert.
denied 389 U.S. 840 (1967); Mooney Aircraft, Inc., 366 F.2d
809 (C.A. 5, 1966).
The employee claiming backpay must make reasonable
effort to secure suitable new employment, and if he fails to
do so he may not be reimbursed for wage losses willfully
incurred. Phelps Dodge Corp. v. N.LR.B., 313 U.S. 177
(1941); Harvest Queen Mill & Elevator Company, 90 NLRB
320 (1950).
The Court of Appeals for the District of Columbia put
the controlling principles as to willful losses thusly in Oil,
Chemical and Atomic Workers International Union [Kansas
Refined Helium Co.], 547 F.2d 598, 602-603 (1976):
The Phelps Dodge Court made it clear that the willful
loss of earnings doctrine was adopted not so much to
affect "the minimization of damages" but rather to
encourage "the healthy policy of promoting production
and employment" ....
The boundaries of the willful loss of earnings
doctrine have been defined in subsequent opinions.
Backpay may be reduced to the extent that the
employee "fails to remain in the labor market, refuses
to accept substantially equivalent employment, fails
diligently to search for alternative work, or voluntarily
quits alternative employment without good reason."
.... The burden of proving such willful loss of
earnings is always upon the employer ...
The discriminatee is merely required to make
"reasonable efforts" to mitigate his loss of income, and
only unjustified refusals to find or accept other
employment are penalized under this rule.... An
employee need not "seek employment which is not
consonant with his particular skills, background, and
experience," or "which involves conditions that are
substantially more onerous than his previous position."
. . . He is not required to accept employment which is
located an unreasonable distance from his home ...
Efforts at mitigation need not be successful; all that is
required is an "honest good faith effort," ... .3
Thus, only reasonable effort to find employment is
required. 4 The finding of an unfair labor practice and
discriminatory discharge is "presumptive proof that some
backpay is owed." Mastro Plastics Corp., supra at 178. In
case of doubt, benefit should be given the discriminatee as
the innocent person, rather than the employer who is
responsible for the dilemma.5
Rice's Efforts to Find Employment
After discriminatee Robert Rice had been discharged, he
applied for unemployment compensation and registered
for employment with the appropriate public authorities.
However, he received no referrals to jobs from those
sources. The Respondent contested Rice's application for
3 Case citations have been omitted.
4 Arduini Manufacturing Corp., 394 F.2d 420, 423 (C.A. 1, 1968), the
discriminatee "is held .. only to reasonable exertion in this regard, not the
highest standard of diligence."
5 In NHE/Freeway, Inc.. et al., 545 F.2d 592, 594 (1976), the Court of
Appeals for the Seventh Circuit said: "[A ]ny doubt in the evidence must be
resolved in the favor of the employee, not the employer. N.LR.B. v.
unemployment compensation, on what ground is not
disclosed, but Rice was ultimately awarded compensation.
There is no evidence that Rice had interim earnings from
other employment, or was offered or rejected other
employment during the backpay period.
Rice testified that during his backpay period, May 17 to
July 15, 1974, he applied unsuccessfully for employment at
some 27 dealers in the Cleveland area. Two of the dealers
indicated interest: Arthur Pontiac and LaTour Oldsmobile.
Rice's undenied and credited testimony is that Arthur
Pontiac, after initially indicating that they could use him,
called DeLorean Cadillac and then advised Rice that they
were sorry, but they had no opening for him. At the
original unfair labor practice hearing, Rice testified
concerning approximately six similar experiences he
encountered in seeking employment. (DeLorean Cadillac,
Inc., 218 NLRB 1362, 1364 (1975)). Rice applied for
employment at LaTour Oldsmobile on May 21, 1974, 6
days after his discharge. LaTour was then considering
adding a salesman to its force and subsequently did so.
After speaking to Rice, Sales Manager George Weather-
wax of LaTour told Rice that he might be able to do
something for him and would get in touch with Rice.
Weatherwax then called Charles DeLorean, owner of the
Respondent, and asked DeLorean why the Respondent
had discharged Rice. DeLorean responded that he would
"have to get back" to Weatherwax and terminated the
conversation. DeLorean did not thereafter contact Weath-
erwax, and, as a result, Weatherwax did nothing further
about hiring Rice, because of apprehension over DeLore-
an's action.
Owner DeLorean testified that he received some six calls
from places (unidentified) where Rice applied for employ-
ment after his discharge by the Respondent. Except as to
Weatherwax, according to DeLorean, he told each caller
that Rice had resigned because he was planning to move to
Florida shortly.
DeLorean further testified that the first call had been
from Weatherwax, and at that time DeLorean "didn't
know what to tell him," so he called his attorney who
advised him to state "the plain truth," but without
reference to any union activity.6 According to DeLorean's
further testimony, he called Weatherwax back once, but
was unable to reach him, and thereafter the matter "slipped
[DeLorean's] mind." There is no indication in the evidence
that DeLorean identified himself or his purpose in calling
back Weatherwax.
Whatever DeLorean's intent, it is apparent that his
failure to advise Weatherwax of the reason for Rice's
termination caused Weatherwax to drop consideration of
Rice. As Weatherwax put it in his testimony, "It scared
me."
Though Rice looked at newspaper ads, he found nothing
suitable. There is no evidence that, during Rice's backpay
period, newspaper ads for auto or other desirable sales
Madison Courier Inc., 153 U.S. App. D.C. 232, 472 F.2d 1307, 1319-21
(1972)." And see United Aircraft Corporation, 204 NLRB 1068: ". . ITIhe
backpay claimant should receive the benefit of any doubt rather than the
Respondent, the wrongdoer responsible for the existence of any uncertainty
and against whom any uncertainty must be resolved."
6 It is not explained why union activity was referred to. Unfair labor
practice charges were not filed until late July 1974.
330
DeLOREAN CADILLAC
positions, or other appropriate employment, appeared in
the newspapers.
The Respondent concedes that Rice made "an apparent
effort to find other similar type employment," but it
contends that it should not be penalized for Rice's failure
to get a job because he was moving to Florida. Rice did in
fact ultimately move to Florida. His credited testimony is
that he finally concluded that he could not find employ-
ment in Cleveland and would have to leave town.
However, if knowledge of that impending occurrence was a
factor in Rice's inability to secure employment in Cleve-
land, it is the Respondent who is responsible for that. As
we have seen, DeLorean told prospective employers who
inquired concerning Rice that Rice had resigned because
he intended to move to Florida shortly. Rice's credited
testimony is that he did not advise prospective employers
of such an intention.
It is found that Rice made a diligent search for
employment throughout his backpay period, and that his
failure to receive employment in Cleveland was probably
the result of the Respondent's actions.
Whether Loch Willfully Lost Earnings
The Respondent contends that Loch made no reasonable
effort to find other employment, and thus willfully lost
wages, and is therefore not entitled to recover any backpay.
The General Counsel contends that Loch made a reason-
able effort to find other employment.
After Loch was discharged, he, like Rice, applied for
unemployment compensation and registered for employ-
ment with the appropriate public authorities. He received
no referrals for jobs from those sources. The Respondent
also contested Loch's application for unemployment
compensation on undisclosed grounds, as it did Rice's, but
with different results-such compensation was denied
Loch.
Loch had no employment during the backpay period
from July 1974 to November 1975.
Loch is a highly qualified automobile salesman, who over
the years has won a number of honors in recognition of his
outstanding sales record.
Loch's credited testimony is that he made various efforts
to find employment throughout the backpay period, as
follows.
Loch testified that at more or less regular intervals
during the backpay period, from July 1974 to November
1975, he applied for employment at some 30 auto dealers in
the Cleveland area but was never able to secure employ-
ment. His uncontroverted and credited testimony is that he
also sought employment, unsuccessfully, as an insurance
agent with New York Life Insurance Company, several
realty firms, local and Florida, for employment as a real
estate agent, with Fidelity Investment as a broker, and
Addressograph Multigraph Company as a sales representa-
tive.
The Respondent introduced testimony by representatives
of a number of the automobile dealers identified by Loch
7 A spot check of the Plain Dealer's issues over Loch's backpay period,
which included each Sunday and two or three randomly selected days
during each week, discloses that the Plain Dealer carried 557 ads for
automobile salesmen, ranging in number from I to 24 per month. and
as places where he sought employment (some of them
places where Rice also unsuccessfully sought employment)
to the effect that they had no recollection or record of Loch
applying to them for employment. That Loch may not have
applied to those particular individuals does not preclude
the possibility that he applied to someone else at the
establishments. The Respondent thus did not discharge its
burden of proving that Loch did not apply, particularly
since a significant number of witnesses conceded that they
could not recall all applicants. In any event, Loch's
testimony that he applied at the remaining dealerships is
undenied. Loch's testimony as to his applications for
employment are therefore credited. Thus, Loch made a
prima facie reasonable search for employment. Nickey
Chevrolet Sales, Inc., 195 NLRB 395 (1972).
However, during Loch's backpay period, approximately
50 automobile dealers in the Cleveland area, including a
number of places at which Loch applied for employment,
advertised for automobile salesmen in the Cleveland Press
and in the Cleveland Plain Dealer, newspapers of general
circulation in the area. Except for a period of 7 weeks in
late 1974, in which the two papers did not publish, each
newspaper, and the Plain Dealer in particular, carried such
ads each month during the period.7
Loch did not respond to any of those ads. Indeed, he did
not look for employment in the newspapers at all. The
reason he gave in his testimony for not doing so, was that
he felt that he could "do better on [his] own" by personal
application to the dealers.
Perhaps Loch should have assiduously read the want ads.
However, the issue is whether his failure to do so is per se
fatal to his backpay claim, and automatically disqualifies
him from recovering any part of his losses, even though he
otherwise made a reasonable search for employment. I find
that it is not. As we have seen, Loch made a reasonable
search. That he suffered substantial wage losses is unques-
tioned. There is no evidence that he was offered, or refused,
desirable new employment. While the Respondent argues
that if Loch sought new employment he would, in view of
his outstanding sales record, have been immediately hired
(as some dealers so testified for the Respondent), no such
conclusion seems justified from the record. As we have
seen, Loch applied at some of those dealers, as well as at
some of those who advertised, and was rejected. So did
Rice, with similar result, though there is no evidence that at
the time of Rice's applications, those dealers were advertis-
ing for help. There may be a question, too, as to what kind
of referral Loch would have got from the Respondent had
he applied to the advertisers. Rice's experience, stated
above, does not offer encouragement. There is no compel-
ling reason to anticipate that if Loch had responded to the
advertisers he would have fared any better than he did on
his own. In view of these facts, I conclude that it has not
been established that Loch willfully incurred a loss of
wages. There is no requirement that a discharged employee
"must exhaust all possibilities in seeking interim employ-
ment." Nickey Chevrolet Sales, Inc., supra at 398, a case in
averaging 37 per month. A similar spot check of the Cleveland Press for the
same period discloses that the press carried 174 ads for automobile
salesmen, ranging in number from 2 to 33 per month and averaging 11-1/2
per month.
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some respects similar to the instant one. As the First
Circuit has said, what is required is only "reasonable
exertion" and "not the highest standard of diligence.8
What the result may have been in a different context of
fact need not be determined.
The Formula
There is dispute between the General Counsel and the
Respondent as to the formula for determining the amount
of backpay Loch and Rice would have earned had they not
been discharged. The General Counsel contends that the
proper formula is the average monthly earnings of each
during the year prior to their terminations. The Respon-
dent contends that the proper formula is the percentage
relationship that the discriminatees' sales during the entire
period of their employment bear to the total sales of the
Respondent during that period of time-in Loch's case
18.44 percent and in Rice's case 14.746 percent. The
Respondent's total sales during the backpay period of each
of the discriminatees would then be multiplied by that
percentage, thus giving the gross backpay due each.9
The Respondent's formula would substantially reduce
the amount of the General Counsel's claim, for the reason
that after the discharge of Loch and Rice the Respondent's
sales fell some I I-plus percent in 1974 and an additional 6-
plus percent in 1975.
The actual earnings of employees in a representative
period prior to their discharge is a foundational formula
traditionally used by the Board in determining the amount
of backpay due discriminatees. As Administrative Law
Judge Knapp said in Chef Nathan Sez Eat Here, Inc., 201
NLRB 343, 345 (1973), that is "the most fair, suitable, and
equitable formula to employ, and should not be departed
from in the absence of special circumstances .... " The
formula proposed here by the General Counsel substantial-
ly fits those requirements. It covers a period of employment
broad enough to be representative, and recent enough to be
typical of relevant performance. That being so, the burden
is on the Respondent to establish special circumstances
requiring deviation from it, and to propose a more
satisfactory formula. In my judgment the Respondent here
has not met either of those burdens.
That the Respondent's sales fell after the discharges of
Rice and Loch may be attributable, not to market factors,
but rather in some measure to the very fact of their
absence. Both were outstanding salesmen, and their
departure from the staff should necessarily have had some
adverse affect on sales, unless they were replaced by
equally competent salesmen-of which there is no evidence
here. Whether that adverse effect would amount to the 11-
percent and 6-percent drop experienced, no one can say-
at least in the absence of evidence as to the size and quality
g Arduini Mfg. Corp., 394 F.2d 420, 423 (1968).
9 The Respondent's answer avers that the parties agreed on the
Respondent's formula prior to hearing. While the Respondent made such a
proposal in the course of settlement discussions, there is no evidence that it
was accepted by the General Counsel or the discriminatees.
'0 Loch's case is illustrative of the distortion which may result from
averaging the discriminatees' proportion of sales during their total
employment.
During Loch's period of employment beginning in 1968 and running
through 1973, his last full year, his earnings consistently rose year-by-year
from $14,930.89 in 1969 to $26,063.62 in 1973.
of the Respondent's remaining sales force as compared to
the situation prior to the discharges, the number of
prospects given to salesmen, the number generated by
them, and the latitude allowed salesmen in dealing-facts
now perhaps incapable of reliable ascertainment. Thus, the
Respondent's formula is deficient in its initial assumption
that had Rice and Loch remained, the Respondent's sales
would have dropped to the point that they did. There is
evidence that new car registrations in Cuyhoga County fell
in 1974 and 1975, but there is no evidence that Cadillac
registrations also fell. To assume that they did would be
speculative, but in any event not conclusive as to what
Rice's and Loch's sales would have been had they
remained employed. Thus the Respondent's drop in sales
cannot reliably be ascribed to inevitable and economic
factors. But even if it is thought that market factors might
have played a part in the Respondent's sales losses, the
Respondent proposes no alternative method by which the
losses due to the absence of Rice and Loch and the losses
due to market factors can be apportioned.
Nor does the Respondent's proposed formula become
acceptable, even if the Respondent's actual sales in 1974-
75 be deemed a reliable basic figure from which to begin
computations. As has been seen, figures from which the
Respondent would derive its percentage to be multiplied
against the Respondent's actual sales includes all sales by
the Respondent and the discriminatees in the total period
of their employment. The result of that calculation would
be questionable relevance, since it would not be based on a
representative current experience, the preferrable method,
and no persuasive reason has been advanced for substitut-
ing the proposed alternative.
Finally, the figures given by the Respondent for
commissions paid during the backpay period are based on
an assumed average, which admittedly was incorrect in
some instances, and do not represent the actual commis-
sions paid to salesmen.
In the light of these considerations, the Respondent's
proposed formula is rejected and that of the General
Counsel is approved. Cf. Folk Chevrolet, Inc., 176 NLRB
277, 279-280.10
Hospitalization Premiums and Use of
Demonstrators
The General Counsel claims reimbursement for premi-
ums for hospitalization insurance paid by Loch and Rice
during the backpay period, which premiums the Respon-
dent had paid during Loch's and Rice's employment.
Additionally, the General Counsel claims reimbursement
for the loss of the use of a demonstrator automobile which
the Respondent had furnished Rice. Loch made no claim
for such reimbursement. The Respondent contends that
By using the Respondent's proposed formula, Loch's most productive
(and most recent) years would be diluted by earlier, and presumably
learning, years.
It may also be noted that in the formula adopted here, half of Loch's
formula year, and a substantial portion of Rice's, includes 1974, when the
Respondent's sales fell most. Thus the Respondent has the benefit of some
of the drop of those years, even though the illegal terminations of Loch and
Rice may have contributed to the decline.
332
DeLOREAN CADILLAC
these are not compensable items, but cites no apposite
authority."
Almost three decades ago the Board ruled that premiums
for group health and accident insurance covering employ-
ees of an employer constitute wages, and it has never
departed from that position. W. W. Cross & Company, Inc.,
77 NLRB 1162, 1163-64, 1176 (1948). As the Board said in
Ace Tank & Heater Co., 167 NLRB 663, 664 (1967):
"...wages include such deferred benefits as . . . health
insurance premiums." See also Padre Dodge, 189 NLRB
378, 387-388 (1971), and Bowen Transports, Inc., 196
NLRB 665, 666, 670 (1972). As to demonstrator automo-
biles, the Board has similarly found them compensable
items in backpay proceedings. Folk Chevrolet, Inc., 176
NLRB 277 (1969); Nickey Chevrolet Sales, Inc., 195 NLRB
395 (1972).
Whether the Respondent Offered Loch
Unconditional Reinstatement in August 1975
The Respondent asserts that it offered Loch reinstate-
ment on August 7 and 11, 1975, and that its obligation for
backpay consequently terminates them rather than on
November 24, 1975, the date Loch was reinstated. The
General Counsel contends that Loch was not given a valid
offer of reinstatement in August. The facts are as follows.
On Friday, August 7, 1975-about 5 weeks after the
Board's decision finding that Loch and Rice had been
discriminatorily discharged-the Respondent wrote to
Loch offering him reinstatement as a "regular full-time
automobile salesman . . . subject to all the privileges,
rights, duties and responsibilities as other salesmen," and
directing him to report Monday, August 11, 1975, at 9 a.m.,
for "appropriate assignment."
Loch presented himself at the Respondent's premises
before 9 a.m., on Monday, August 11, and was offered the
job of used-car salesman under the direction of the used-
car manager.' 2 Loch demurred, stating that the order of the
Board required his reinstatement as a new-car salesman.
Owner DeLorean told Loch that the Respondent was
constructing new quarters, and that when they were
completed, some months in the future, separate classifica-
tions of new- and used-car salesmen would be abolished
and all salesmen would sell both types of cars. In addition,
DeLorean stated that the position offered Loch was the
only one open in the sales department. Loch stated that he
could neither accept nor reject the offered position pending
consultation with the Board, and left. He has never
accepted the Respondent's offer.
It is clear, and admitted, that Loch was not offered
reinstatement, as the Board ordered, to his "former job."
While the Board's order provides, alternatively, in the
event "that job no longer exists," for reinstatement to a
"substantially equivalent position," the evidence establish-
' The case referred to by the Respondent as supporting its view,
Brennan v. Modern Chevrolet Co., 363 F.Supp. 327 (D.C. Tex.. 1973),
involved a different statute.
12 Loch so testified, and I construe owner Charles DeLorean's testimony
as confirming Loch's testimony in that regard.
11 The Respondent began to institute the new system in November 1975,
prior to the Respondent's move to its new quarters.
14 It is conceded that these are due and owing.
es that the job of new-car salesman still existed on August
11 and that the new system was not in fact instituted until
later.' 3 Since Loch's old job of new-car salesman still
existed at that time, compliance with the Board's order
required that he be offered it, even though it may have
been filled by persons later hired. Since Loch was not
offered reinstatement to that position, but to another and
different one, it is found that the Respondent did not
comply with its obligations under the Board's order. It is
consequently found that the Respondent did not offer on
either August 7 or 11, 1975, to reinstate Loch to his former
and available position.
General Conclusions
On the basis of the evidence and the foregoing findings,
it is concluded that Loch and Rice are, respectively, due
the following amounts from the Respondent.
Loch
Backpay
Insurance premiums
Previously unpd.
commissions '4
$33,908.31
731.19
1,202.10
$35,841.60
Rice
255 contest points'4
Backpay
Use of demonstrators
Insurance premiums
$3,007.56
110.00
97.91
$3,215.47
Recommendations
On the basis of the foregoing findings of fact, conclu-
sions, and the entire record in this proceeding, and
pursuant to Section 10(c) of the National Labor Relations
Act, I issue the following recommended:
ORDER' 6
DeLorean Cadillac, Inc., its officers, agents, successors,
and assigns, shall pay to Stanley Loch the sum of
$35,841.60 and shall pay to Robert Rice the sum of
$3,215.47. Interest shall be calculated on both sums at the
rate of 6 percent per annum in accordance with the
principle set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). There shall be deducted from the
amounts due any tax withholding required by law. In
addition the Respondent shall give Robert Rice 255 contest
points.
15 For a 2-month period, estimated use 500 miles per month at I I cents
per mile.
'8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
333