Bridgeway Oldsmobile, Inc., And Its Successor Allan Motor Co., Inc.

858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bridgeway Oldsmobile, Inc., and its Successor Allan Motor Company, Inc.' and United Food and Commercial Workers Union Local 1179, United Food and Commercial Workers, AFL-CIO. Case 32-CA-7184 June 9, 1989 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 23, 1989, Administrative Law Judge Jerrold H. Shapiro issued the attached supplemen- tal decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a re- sponse to the exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Bridgeway Oldsmobile, Inc., and its successor, Allan Motor Company, Inc., Hayward, California, their officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The caption has been amended to reflect the undenied allegations of the amended backpay specification and the resultant uncontested findings of the judge that Allan Motor Co , Inc is a successor to Respondent and is jointly and severally liable with the Respondent for backpay due under the Board's Orders 2 In the absence of exceptions, we affirm the judge's backpay findings with respect to discnmmatee Tom Roberts For the same reason, we affirm the judge's rejection of the General Counsel's contention that the Respondent is obligated to make whole its salespersons for commission earnings lost as a result of any hiring of replacements to fill positions held by unlawfully hired salespersons Decker, Simpson, and DePolo Barbara D. Davison, for the General Counsel. James A. Carter and Karen T. Dutton (Hendrickson, Higbie & Cole), for the Respondent. David Rosenfeld (Van Bourg, Weinberg, Roger & Rosen- feld), for the Charging Party. SUPPLEMENTAL DECISION JERROLD H. SHAPIRO, Administrative Law Judge. On October 15, 1986 the Board issued a Decision and Order in this proceeding ' adopting the findings of the adminis- ' 281 NLRB 1246 (1986). trative law judge that Respondent, among other viola- tions of the Act, violated Section 8(a)(1) and (3) of the Act by discharging employee Thomas Roberts because of his union activities and violated Section 8(a)(1) and (5) of the Act by retaining employee Joseph Harpe; who wished to retire, so that Harpe could vote against the Union in a scheduled representation election, and by hiring employees Craig Decker, George Simpson, and Sue DePolo for the purpose of undermining the Union's support in the election. The Board, as part of its remedy of the aforesaid unfair labor practices, ordered Respond- ent to make Roberts whole for any loss of earnings suf- fered as a result of his discharge but did not order back- pay for employees who lost commissions as a result of the Respondent's unlawful unit packing. In view of this omission, the Union petitioned the United States Court of Appeals for the Ninth Circuit to review the Board's Order. On February 24, 1988 the court issued a decision granting the petition for review and remanded the case to the Board to consider the Union's contention that the Board erred in failing to include, as part of the remedy, backpay for the employees who lost commissions as a result of the Respondent's unlawful unit packing.2 Thereafter, on August 5, 1988, the Board issued a Sup- plemental Decision and Order in this proceedmg3 in which it modified its previously issued order by ordering Respondent to "[m]ake its employees whole, plus inter- est, for commissions lost as a result of hiring and retain- ing employees for the purpose of undermining support for the Union in the election held April 10, 1985." More specifically, in the "Amended Remedy" section of its Supplemental Decision, the Board ordered Respondent "to reimburse its employees for commissions lost as a result of its hire of employees Simpson, Decker, and DePolo on March 5, 1985, and the retention of employee Harpe on March 28, 1985, to undermine support for the Union in the election held April 10, 1985." A controversy having arisen over the amount of back- pay due discriminatee Roberts and whether employees suffered a loss of sarnings as a result of Respondent's ille- gal hire of Simpson, Decker, and DePolo, the Regional Director for Region 32 on May 7, 1987, issued a backpay specification and notice of hearing and on October 6, 1988, issued an amended backpay specification and notice of hearing which, as further amended during the hearing held January 23, 1989, alleged the amounts of backpay due under the Board's Orders,4 and also alleged that Allan Motor Co., Inc., which took over Respondent's business on March 18, 1987, with notice of Respondent's unfair labor practices, was a successor employer and, as such, jointly and severally liable with Respondent for all backpay due under the Board's orders. On May 27, 1987, and June 9, 1987, Respondent filed an answer and a modified and supplemental answer to the May 7, 1987 2 Food & Commercial Workers Local 1095 v NLRB, No 87-7127 (un- published) 3 290 NLRB 824 * On March 9, 1987, and September 16, 1988, Respondent entered into stipulations whereby it waived its right under Sec 10(e) and (f) of the Act to contest the propriety of the Board's original order or supplemen- tal order, or the findings of fact and conclusions of law underlying said orders 294 NLRB No. 77 BRIDGEWAY OLDSMOBILE backpay specification and at the January 23, 1989 hear- ing filed an oral answer to the amended backpay specifi- cation The alleged successor employer, Allan Motor Co., Inc., did not file an answer to either the initial or amended backpay specification.5 The only issues raised by Respondent's answer to the amended backpay specification are as follows: (1) Whether the Regional Director used an appropriate for- mula to compute discriminatee Roberts' gross backpay; (2) whether Respondent's illegal hire of Decker, Simp- son, and DePolo resulted in the loss of earnings by the other salespersons Upon the entire record, from my observation of the demeanor of the witnesses, and after considered the par- ties' posthearing briefs, I make the following FINDINGS AND CONCLUSIONS Roberts' Gross Backpay Respondent owned and operated an Oldsmobile Auto- mobile dealership in Hayward, California. During the time material it was a brand new dealership, having opened for business on or about January 19, 1985. The claimant, Thomas Roberts, was employed by the dealer- ship as a salesperson. He began work for Respondent on January 25, 1985, and was employed by Respondent until his March 9, 1985 discharge; a total of 6 weeks. Prior to working for Respondent, Roberts had 6 months' experi- ence working as a motor vehicle salesperson; he worked from July 1984 to approximately January 25, 1985, for the Lloyd Wise Oldsmobile Dealership in Oakland, Cali- fornia. Immediately following his March 9, 1985 dis- charge, within approximately 1 week, Roberts returned to work as a salesperson for Lloyd Wise and sometime during the second quarter of 1985 left Lloyd Wise's em- ployment to work as a salesperson for another Oldsmo- bile dealership, Connell Oldsmobile, also located in Oak- land He was employed by Connell Oldsmobile through at least March 1986. During his employment with Respondent, Roberts was not paid either a salary or an hourly rate of pay Like Respondent's other salespersons, he was compensated by means of commissions based upon his sales. The record reveals that the commission earnings of a motor vehicle salesperson are not based upon the number of motor ve- hicles sold; they depend on the type of motor vehicles sold, i.e., luxury or nonluxury model, and the ability of the salesperson to get a good price for the vehicle and to persuade the customers to buy "extras." During Roberts' 6 weeks of employment, January 25, 1985, through March 9, 1985, his gross commission earnings totaled $4211. The gross commission of the five other salesper- sons employed by Respondent during the first quarter of .1985 were as follows. Walker, who worked 12 weeks during that quarter, earned $5197; Harpe, Hover and Blanton, who each worked 10 weeks during that quarter, earned $4559 and $5470 and $8996, respectively; and, 5 The undenied allegations of the amended backpay specification estab- lish that Allan Motor Co, Inc, is a successor employer to Respondent and, as such, is jointly and severally liable with Respondent for any back- pay liability due under the Board's orders 859 Agutar, who worked 6 weeks during that quarter, earned $2526. Thus Roberts' sales record compared favorably with the sales records of the Respondent's other salesper- sons employed during the first quarter of 1985 Under the circumstances, the testimony of Respondent's vice president/general manager Fred Walker, that Roberts was "not much of a salesman" and the testimony of Re- spondent's general sales manager Howard "Bud" Allan, that Roberts' competency as a salesperson was "very ele- mentary," does not ring true. In rejecting their testimony in this respect, I also note that the testimonial demeanor of Walker and Allan was not good and that neither one gave any specifics to substantiate their above-described conclusionary testimony. The record, except in Roberts' case, does not indicate the number of motor vehicles each of Respondent's sales- persons sold during the time material. During the 6 weeks Roberts worked for Respondent he made six sales, including one lease transaction which was treated by Re- spondent like a sale because it is simply an alternative method of financing a motor vehicle sale. The record re- veals Roberts received assistance of some sort from man- agement in connection with two of his sales: General Sales Manager Allan assisted him in the lease transaction by interpreting the Company's lease booklet so as to compute the applicable lease and payment schedules for him, but otherwise did not become involved in persuad- ing the customer to lease the motor vehicle; and General Manager/Vice President Walker helped Roberts close the sale on the motor vehicle he sold to customer Wil- liams. The record does not reveal what type of assistance Roberts needed to close this sale.6 However the record also reveals that it is common in the motor vehicle sales industry, including Respondent's dealership, for manage- ment to assist its salespersons to close sales. There is no evidence that during Roberts' term of employment with Respondent, that management gave him more assistance than it gave to its other salespersons 7 The gross backpay of a discriminatee is the amount he or she would have earned if he or she remained with the employer throughout the backpay period Exact calcula- tion of this amount is usually not possible and because of this the Board's Regional Director is vested with wide discretion in selecting a backpay formula and methods of calculation appropriate to the circumstances of a particu- lar case. See generally NLRB v. Overseas Motors, 818 F.2d 517, 520-521 (6th Cir. 1987). As the Eighth Circuit Court of Appeals pointed out in NLRB v. Brown & Root, 311 F.2d 447, 452 (1963): 6 The record reveals that assistance given salespersons by management to help close a sale can range from simply a handshake and greeting by the owner of the dealership to more substantial involvement in the details of the sale I I considered that when Respondent's counsel asked, "[w]as the degree of assistance that you gave and you observed being given to Mr Roberts consistent with skills on his part of the competent journeyman, experienced salesman?", that General Sales Manager Allan testified, "no " This is the only testimony which colorably touches on the subject of whether Respondent's management assisted Roberts more than the other salespersons The testimony does not establish this was the case More- over, the testimony lacks specificity It is because of this and because of the leading nature of the question which illicit the testimony and because of Allan's unpersuasive testimonial demeanor that I reject it 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Obviously, in many cases it is difficult for the Board to determine precisely the amount of backpay which should be awarded to an employee. In such circumstances the Board may use as close approxi- mations as possible, and may adopt formulas reason- ably designed to produce such approximations. And, as the Fifth Circuit Court of Appeals pointed out in Trinity Valley Iron Steel Co. v. NLRB, 410 F.2d 1161, 1177 fn. 28 (1969), "[t]he Board is only required to employ a formula reasonably designed to produce ap- proximate awards due." So long as the formula used by the Board's Regional Director is not arbitrary, capacious or an abuse of discretion, it will be permitted to stand. Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977); NLRB P. Brown & Root, 311 F.2d 447, 452 (8th Cir. 1963); NLRB v. Overseas Motors, 818 F.2d 517, 520-521 (6th Cir. 1987); and NLRB v. Charley Toppino & Sons, 358 F.2d 94, 97 (5th Cir. 1966) ("If the Board was not arbitrary in the selec- tion of a formula, its choice may no be rejected.") Roberts' backpay period began on March 9, 1985, the date of his illegal discharge, and ended March 18, 1986, when he declined Respondent's offer of reinstatement. The backpay specification herein calculated Respond- ent's gross backpay for the first quarter of 1985 based on his actual earnings during his 6 weeks in the Respond- ent's employ within that period. The Board's Regional Director assumed that Roberts' commission earnings during the remaining 3 weeks of the first quarter would have been the same as his average commission earnings during the prior 6 weeks. This part of the specification's gross backpay formula constitutes a reasonable approxi- mation of what Roberts would have earned had he con- tinued to work for Respondent for the remainder of the first quarter of 1985. Thus, during the first quarter of 1985, Roberts was employed by Respondent for 6 of the approximately 10 weeks it was opened for business'8 plainly a representative period of time for that quarter. Under the ci-•cumstances, the Board's Regional Director reasonably assumed that for the 3 weeks of the first quar- ter of 1985 which remained after his discharge, that Rob- erts' commission earnings would have remained the same as his average commission earnings during the immediate preceding 6-week period. Respondent, which does not seriously contest this particular part of the Regional Di- rector's gross backpay formula, presented no evidence to contradict this reasonable assumption and there is other- wise no record evidence which contradicts it. Regarding Roberts' gross backpay for the remainder of the backpay period-the last three quarters of 1985 and the first quarter of 1986-the backpay specification alleges that an appropriate measure of what Roberts would have earned, if he remained employed by Re- spondent during that period, can be obtained by a pro- jection of his average weekly commission earnings while in Respondent's employ, adjusted by the change in the average weekly commission earnings of all the salesper- sons employed by Respondent during the backpay fi As I have found supra, Respondent did not open for business until January 19, 1985 period. This formula assumes that if Roberts had not been illegally discharged and had remained in Respond- ent's employ during the last three quarters of 1985 and the first quarter of 1986, he would have experienced the same rate of increase or decrease in his commission earn- ings as experienced by the other salespersons employed during that period. In other words, this modified projec- tion of average earnings is based on the assumption that if he had continued in Respondent's employ, Roberts' commission earnings would have increased or decreased in the same proportion as did the earnings of the sales- persons, as a group, employed by Respondent during the backpay period.9 Andrew Young, the compliance offi- cer, who, on behalf of the Board's Regional Director, was responsible for the inclusion of this formula in the backpay specification, testified it was selected because it was not possible to find a precise counterpart employee for Roberts who worked for Respondent `during the backpay period' ° and because of certain special circum- stances inherent to the position of a commission salesper- son employed in the automobile sales industry. In this last regard, Compliance Officer Young testified he con- cluded it was reasonable to assume that if Roberts had remained in Respondent's employ during the last three quarters of 1985 and the first quarter of 1986, his ability to earn would have increased or decreased to the same extent as the salespersons considered as a group, because the commission earnings of salespersons in the automo- bile industry are not based solely upon the salespersons' personal sales skills or diligence, but are based in substan- tial part upon other factors outside of the salespersons' personal control, as follows: The seasonality of the auto- mobile sales business; the different promotional policies of the dealerships, i.e., lower finance charges; the change in consumer preference for one make of automobile, in this case Oldsmobile, over other makes of automobiles sold by competing dealerships; changed economic condi- tions which generally affect consumer demand for auto- mobiles; and the fact Respondent's dealership had been in business less than 2 months at the time of Roberts' dis- charge, raised the possibility that as it became more es- tablished in the community and in the industry, it would attract more customers for its salespersons. Young's aforesaid testimony is consistent with the realities of the automobile sales industry and the record contains no evi- dence which establishes that in the case of Respondent's automobile dealership the factors relied upon by Young 9 In computing the average weekly commission earnings of the sales- persons in Respondent's employ during the backpay period, it was rea- sonable for the Regional Director to rely on the earnings of all the sales- persons, the very high as well as the very low earners See Graphic Arts Chicago Local 245 (Alden Press), 217 NLRB 1112-1112 (1975) (" an aver- age for purposes of backpay proceedings must obviously include all the highs and lows of earnings of comparable employees, the valleys and peaks, the unfavorable as well as the favorable, if averaging is to have any value in the determination of backpay ") 10 The record does not establish that Respondent replaced Roberts with a salesperson who was comparable to him or otherwise employed a salesperson comparable to Roberts Indeed, during the hearing, Respond- ent conceded it would not have been logical for the Regional Director, under the circumstances of this case, to have measured Roberts' gross backpay by using the so-called comparable or replacement employee for- mula BRIDGEWAY OLDSMOBILE did not in fact exist during the backpay period. Quite the opposite, in the underlying unfair labor practice proceed- ing, Respondent's general sales manager Allan testified that Respondent's business, like all automobile dealer- ships, was seasonal and that "the spring and summer months traditionally bring an increase in customer traf- fic.'-' 281 NLRB 1246, 1257 (1986). Consistent with Allan's aforesaid testimony, the record in this supplemen- tal proceeding establishes that following Roberts' March 9, 1985 discharge, Respondent's sales of automobiles in- creased substantially in 1985 during the spring and summer of the backpay period. Under these circum- stances, I find that the Board's Regional Director did not act arbitrarily or capriciously, but acted reasonably in the manner in which he measured Roberts' gross back- pay for the last three quarters of 1985 and the first quar- ter of 1986. During the backpay hearing Respondent asserted that one of the reasons the gross backpay formula used by the Regional Director was an unreasonable measure of Rob- erts' earnings was that his sales record while employed by Respondent was the result, in part, of the assistance of selling automobiles he received from management, which assistance would have ceased at some point during the backpay period. However, as I have found supra, it is common in the automobile sales industry, including Respondent's dealership during the time material, for management to assist salespersons to close sales and there is no evidence that during Roberts' employment by Re- spondent that management assisted him more than the other salespersons. In any event, assuming Roberts was given more assistance than other salespersons, Respond- ent failed to prove its assistance to him would have ceased during the backpay period, thus adversely affect- ing his earnings. In this regard, General Sales Manager Allan testified that if Roberts had not been discharged, management would not have ceased giving him assist- ance, but "would [have] give[n] him as much help as we felt [was] necessary to make him successful because his success is in proportion to our success." During the backpay hearing and in its posthearing brief, Respondent asserted that an appropriate measure of Roberts' gross backpay should be based upon his average weekly earnings while employed during the backpay period at Lloyd Wise Oldsmobile and Connell Oldsmo- bile or, in the alternative, upon his average weekly earn- ings while employed by Respondent projected through- out the backpay period. These assertions lack merit for the reasons below. Regarding the use of Roberts' interim earnings while employed at Lloyd Wise Oldsmobile and Connell Olds- mobile to measure his gross backpay, Andrew Young, the Board's Regional Office compliance officer, testified that this formula was not an appropriate one because no two automobile dealerships provide the same earning op- portunities for salespersons, in view of the following: dif- ferent locations; different promotional policies, i t differ- 11 Concerning the effect of promotional policies on a ,dealership' s sales, I note that Respondent 's general sales manager Allan testified that not all Oldsmobile dealerships are the same, even those located in the same geo- graphical area, because customers shop around and buy from the dealer- ship where they are offered the best deal 861 ent reputations; and different commission structures. In view of these differences, Young testified, it would not be reasonable to say that Roberts' interim commission earn- ings at Lloyd Wise Oldsmobile and Connell Oldsmobile were indicative of what he would have earned at Re- spondent during the same period if Respondent had not fired him Respondent presented no evidence to establish that the circumstances surrounding Roberts' employment at Lloyd Wise Oldsmobile and Connell Oldsmobile were sufficiently similar to those which existed during the backpay period at Respondent's dealership, so as to war- rant the inference that his interim earnings at Lloyd Wise Oldsmobile and Connell Oldsmobile constitute a reasona- ble approximate reflection of what he would have earned if he had continued to work for Respondent throughout the backpay period. i 2 Quite the opposite, the record re- veals that Respondent's dealership was located in Hay- ward, California, whereas both Lloyd Wise Oldsmobile and Connell Oldsmobile were located in Oakland, Cali- fornia. The record also reveals that the reason Roberts in January 1985 quit Lloyd Wise Oldsmobile to go to work for Respondent was that he believed he would be able to earn more money working for Respondent because of its Hayward location, which was a better location than Lloyd Wise's Oakland location. The record further re- veals that there is considerably more customer walk-in traffic at Respondent's dealership than at Connell Olds- mobile and that the salespersons employed at Connell Oldsmobile, where Roberts was employed for most of the backpay period, did not sell both new and used cars as did Respondent's salespersons; they sold either new or used cars. Also unlike Respondent's dealership, used-car sales at Connell Oldsmobile constituted the vast majority of car sales and because of this the salespersons em- ployed by Connell coveted the job of used-car salesper- son. i 3 In view of the foregoing circumstances, I find Re- spondent's proposed use of Roberts' commission earnings at Lloyd Wise Oldsmobile and Connell Oldsmobile to measure his gross backpay does not constitute a reasona- ble gross backpay formula. Regarding the use of Roberts' average weekly earn- ings while employed by Respondent, as projected throughout the backpay period, to measure his gross backpay, this formula does not take into account the sev- eral factors set forth supra, which are unrelated to a salesperson's personal ability and diligence to generate sales, yet are reasonably calculated to cause a salesper- son's commission earnings to rise or fall. Most significant among those factors for purposes of the instant case is the seasonal nature of Respondent's business. In this regard, Roberts was discharged by Respondent at the conclusion of the slow winter season, just prior to the start of Respondent's busiest spring and summer seasons. Under these circumstances, Roberts prior employment of 6 weeks was far too short for the projection of his aver- 12 I note that Roberts testified he was unable to remember whether the commission structure at either Lloyd Wise Oldsmobile or Connell Olds- mobile was the same as Respondent's commission structure 13 Initially Roberts was employed by Connell as a new-car salesperson, but because of his success in selling new cars he was thereafter promoted to the position of used-car salesperson 862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD age earnings throughout the 1-year backpay period to yield an equitable result. Moreover, besides its business being seasonal, Respondent's dealership had been open for business less than 2 months at the time of Roberts' discharge, thus raising the distinct possibility that as it became more established in the community it would at- tract more customers for its salespersons. It is for all of the foregoing reasons that I find Roberts' earnings while employed by Respondent, as projected throughout the backpay period, does not constitute a reasonable formula to measure his gross backpay. It is for the reasons set forth supra, that I find the Board's Regional Director did not act arbitrarily or ca- priciously, but acted reasonably in measuring claimant Roberts' gross backpay pursuant to the formula set forth in the backpay specification, rather than using any of the formulas suggested by Respondent. I further find, for the reasons set forth supra, that the Regional Director's gross backpay formula reasonably approximates what claimant Roberts would have received but for Respond- ent's unlawful discharge. Having found that Roberts' gross backpay is as set forth in the amended backpay specification and inasmuch as Respondent admits Roberts' interim earnings are as set forth in the amended backpay specification, I conclude that the net backpay due Roberts is $20,440, as stated in the amended backpay specification. The Commission Earnings Lost as the Result of the Illegal Hire of Simpson, Decker, and DePolo In the underlying unfair labor practice proceeding, the Board affirmed the findings of the administrative law judge that on March 5, 1985, Respondent hired George Simpson, Craig Decker, and Sue DePolo as salespersons for the purpose of packing the voting unit and undermin- ing support for the Union in the representation election held April 10, 1985, thereby violating Section 8(a)(1), as well as Section 8(a)(5) of the Act. In this respect the ad- ministrative law judge's decision, adopted by the Board, was based upon the premise that absent its illegal pur- pose of packing the voting unit with antiunion employ- ees, Respondent would not have hired three more sales- persons on March 5, 1985. As a matter of fact, the ad- ministrative law judge specifically rejected Respondent's defense that on March 5, 1985, during the normal course of business and for legitimate business purposes, it would have added three more salespersons to its existing sales force of six, even absent the employees' union activities. To remedy Respondent's illegal March 5, 1985 hire of Simpson, Decker, and DePolo, the Board in its Supple- mental Decision herein ordered Respondent to "make its employees whole, plus interest, for commissions lost as a result of hiring . . . employees for the purpose of under- mining support for the Union in the election held April 10, 1985," and, in the "Amended Remedy" section of the Supplemental Decision, directed Respondent "to reim- burse its employees for commissions lost as a result of its hire of employees Simpson, Decker, and DePolo on March 5, 1985 . . . to undermine support for the Union in the election held April 10, 1985."14 Regarding Simpson's, Decker's, and DePolo's commis- sion earnings while employed by Respondent, the record reveals the following: Simpson was employed until May 22, 1985 and earned $7330; Decker was employed until sometime in October 1985 and earned $16,399; DePolo was employed until July 4, 1985, and earned $4963. In sum, the commission earnings of Simpson, Decker, and DePolo while employed by Respondent totaled $28,692. By proving that Simpson, Decker, and DePolo, whom Respondent illegally hired to pack the voting unit, earned $28,692 in commissions while employed by Re- spondent, the General Counsel made a prima facie show- ing that those commissions would have been earned by the other salespersons in Respondent's employ absent the unlawful hire of Simpson, Decker, and DePolo. This finding is based on the assumption that Respondent's other salespersons would have succeeded in selling auto- mobiles to the customers whom Simpson, Decker, and DePolo made their sales. I recognize that it is not certain that other salespersons would have been able to persuade those customers to purchase automobiles or would have made the same deals as did Simpson, Decker, and DePolo. However, the law is settled that when an em- ployer's unlawful discrimination makes it impossible to determine whether an employee would have earned backpay in the absence of discrimination , the uncertainty should be resolved against the employer. See, e.g, NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 572-573 (5th Cir. 1966). This rule is itself a corollary of the other familiar principle that the burden is on the wrongdoer to disentangle the consequences for which it was chargeable from those from which it was immune. See NLRB v. Remington Rand, 94 F.2d 862, 872 (2d Cir. 1938). Here it was Respondent's illegal hire of Simpson, Decker, and DePolo which created the uncertainty which now exists In view of this, once the General Counsel established that the illegally hired employees earned commissions it was up to Respondent to come forward with evidence to prove that its other salesper- sons would not have made the sales which were made by the illegally hired salespersons or that during the normal course of business Respondent would have hired additional salespersons whose commission earnings would have been comparable to Simpson's, Decker's, and DePolo's. Respondent offered no evidence to demonstrate that any of the automobiles sold by Simpson, Decker, or DePolo would not have been sold by salespersons em- ployed by Respondent if Simpson, Decker, or DePolo had not been employed. Nor does the record contain suf- 14 The Board also adopted the administrative law judge's finding that on March 28, 1985, retiree Harpe was retained by Respondent for the purpose of packing the voting unit, in violation of the Act, and ordered Respondent to reimburse its employees for commissions lost as the result of Harpe's illegal retention It is undisputed, however, that Harpe did not sell any automobiles subsequent to his illegal March 28, 1985 retention, hence had no commission earnings Under the circumstances, neither the General Counsel nor the Charging Party contend that Respondent's salespersons lost commission earnings as a result of Harpe's illegal reten- tion BRIDGEWAY OLDSMOBILE ficient evidence for me to conclude that at some date after the March 5, 1985 hire of Simpson, Decker, and DePolo, during the time they- were employed, that Re- spondent would have hired additional salespersons whose commission earnings would have been comparable to Simpson's, Decker's, and DePolo's. In so concluding I considered that for the third and fourth quarters of 1985, the backpay specification shows that, including Decker, a total of 10 salespersons worked for Respondent during each of those quarters. However the specification merely sets out the number of weeks worked by the salespersons and their gross commission earnings.15 Absent further record evidence clarifying their employment, I am not prepared to say that Respondent met its burden of show- ing that after the March 5, 1985 hire of Decker, during the third and fourth quarters of 1985, Respondent would have hired an additional salesperson or salespersons whose commission earnings would have been compara- ble to Decker's for that period. Based upon the'foregoing I find that the commission earnings lost by the Respondent's salespersons as the result of the illegal hire of salespersons Simpson, Decker, and DePolo totaled $28,692.16 The remaining matter for decision concerns the con- tention of the General Counsel and the Charging Party that, pursuant to the terms of the Board's supplemental order issued in this case, Respondent is obligated to make whole its salespersons for the commission earnings they lost as a result of the following: (1) Respondent's employment of the salespersons whom it hired to take the place of Decker, Simpson, and DePolo, and (2) Re- spondent's employment of replacements for those re- placements, up until the date the business was taken over by the successor-employer Allan Motor Company.17 I 15 In the third quarter five salespersons worked 13 weeks, one worked 11 weeks, one worked 10 weeks, one worked 7 weeks, one worked 6 weeks, and one worked 2 weeks In the fourth quarter four salespersons worked 13 weeks, one worked 11 weeks, two worked 9 weeks, one worked 8 weeks, one worked 5 weeks, and one worked 2 weeks 16 Respondent contends that the Board Order limits the time for which backpay may be awarded the salespersons for the commission earnings they lost as a result of the illegal hire of Simpson, Decker, and DePolo, to the period between March 5, 1985, and the April 10, 1985 representa- tion election This contention is without merit because it is belied by the terms of the Board's Order 17 The record does not contain the names of the salespersons who con- stitute the replacement employees In her posthearing brief the counsel 863 have not considered this contention because it is not en- compassed within the terms of the Board's remedial order in this case, which, in pertinent part, only requires Respondent to "reimburse its employees for commissions lost as a result of its hire of employees Simpson, Decker, and DePolo on March 5, 1985, and the retention of em- ployee Harpe on March 28, 1985, to undermine support for the Union in the election held April 10, 1985." On these findings of fact and conclusions of law, I issue the following recommended 18 ORDER The Respondent, Bridgeway Oldsmobile, Inc., Hay- ward, California, its officers, agents, successors, and as- signs, shall jointly and severally with Allan Motor Com- pany, Inc., Hayward, California, its officers, agents, suc- cessors, and assigns , do the following: (a) Make whole Thomas Roberts by payment to him of the amount of $20,440 plus interest computed in the manner prescribed in New Horizons for the Retarded,19 and accrued to the date of payment, minus tax withhold- ing required by Federal and state laws. (b) Make whole the salespersons employed by Re- spondent during the periods in 1985 when salespersons Simpson, Decker, and DePolo earned commissions, by payment to the salespersons of the amount of $28,692.20 plus interest computed in the manner prescribed in New Horizons for the Retarded, supra, and accrued to the date of payment, minus tax withholding required by Federal and state laws. for the General Counsel states that it is not possible to identify any indi- viduals as replacement employees for either Decker, Simpson, or DePolo 18 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 19 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall be computed at the "short term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 US C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 20 The manner in which this backpay shall be distributed among the salespersons shall be left for the parties to resolve among themselves and if necessary for further compliance proceedings