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Title: American Linen (ALSCO) and Calvin Kaneshiro
Date: November 17, 2003
Michael Nauyokas
Citation: 2003 NAC 130




In the Matter of the Arbitration Between 












          HEARING DATE:            November 17, 2003












Michael F. Nauyokas
Attorney, Mediator & Arbitrator
733 Bishop Street, Suite 2300
Honolulu, Hawaii 96813
Telephone: (808) 538-0553
Facsimile:   (808) 531-3860     
Email: michaelnauyokas@hawaii.rr.com






I.                   INTRODUCTION

This matter came to arbitration on November 17, 2003.  Calvin Kaneshiro (“Claimant”) was represented by Edward C. Kemper, Esquire and Respondent was represented by John L. Knorek, Esquire.  The Respondent and Claimant both provided the Arbitrator with Post Arbitration Summaries.  Both parties were fully and fairly represented.  By stipulation the award was limited to no more than three pages.

            The issue to be decided is whether Claimant is owed certain amounts as commissions and, if so, what remedy is available to Claimant should he prove that the commissions are due.

II.                BACKGROUND

Claimant was employed by ALSCO as an outside salesperson.  ALSCO supplied sheets, linen, robes, and napkins to hotels and restaurants.  ALSCO would provide the items, pick them up and clean them and deliver the items back to the client.  Commissions were generally paid on the third month’s volume based on the company’s commission schedule.  At least three accounts remain in controversy.


Claimant takes the position that the is owed certain commissions for the Mandara Spa, the Luana Lounge Fitness Center and the Makaha Resort accounts.


Respondent contends that all commissions due were paid.

V.                 ARBITRATOR’S ANALYSIS

A.     The Mandara Spa Account

Claimant argues that he “acted on what he was told” and that “[h]e did all of the spade work to sell and obtain the costs for the robes….”  Claimant contends he should have gotten a 250% commission.  The 250% commission is for industrial garments.  Respondent argues the commission “was fully paid at 150% for the robes” as the robes were not “industrial garments.”  A robe is not an industrial garment and therefore is not subject to the 250% commission for industrial garments.  The only other item with a 250% commission is “Dust Control.”  Clearly robes do not fit into this category either.  Respondent seeks a credit alleging it overpaid the commissions at 150% when it allegedly should have been 60%.  The evidence indicates the sale was made at a number more likely to have been the “A” price than the “C” price.  The commission should have been paid at the “A” price.  Claimant is entitled to the commission at the “A” price.  Any amount overpaid should be credited.

Respondent also seeks return of the cost of monograms.  Because there was no evidence that Claimant ever agreed to such a deduction, no deduction will be made to the award.

Claimant sold the account spa bath sheets at a price where the customer later paid less.  There was no evidence that the Respondent cut the price just to reduce Claimant’s commission.  This circumstance was not addressed in the commission policy.  Commissions are generally paid on the amount collected.  Under the evidence presented, Claimant is not entitled to the higher commission.

B.     The Luana Lounge Fitness Center Account

The Commission policy provides that “rates are paid on business written on a standard agreement….” (Emphasis added.)  The testimony from at least two witnesses also supported the requirement of obtaining a contact to earn the commission.  Although Claimant did make the initial contact on this account, he did not procure the contract for the Luana Lounge.  However, the “business” was “written on a standard agreement.”  Respondent argues Claimant should not be paid because the Hilton was an existing account.  Evidence was, however, introduced that Claimant had received commissions previously for sales to Hilton.  There was testimony that other commissions had been split.  Thus, under the policy and the evidence that Claimant did the initial work on the account equity requires a split of the commission.  Claimant is to receive half of the commission for this matter.

C.     The Makaha Resort Account

Claimant’s decision to hold his commissions until the Resort got up to full capacity is a position not supported by the commission policy.  Although in Claimant’s eyes it may have been the “fair” thing to do, commissions are earned under the policy, not by what is “fair” to Claimant.  Nonetheless, Claimant earned and should receive $1,036.28 less taxes and withholding.  Because Respondent already tendered at least this amount, it should not have to pay any attorneys’ fees on this recovery.

VI.              AWARD

Based on the forgoing, the arbitrator awards as follows:

On the basis of the record and the stipulations governing this arbitration, Claimant has not shown by a preponderance of the evidence that he is entitled to all of commissions he seeks.  He is, however, entitled to the “A” price for flat linens on the Mandara Spa account less the credit, half of the applicable commission on the Luana Lounge Fitness Center account, and $1,036.28 on the Makaha Resort Account.  This resolves all claims by both parties made in this arbitration.  As to all other claims asserted by the parties, except to the extent stated above, those claims are denied.  Under the circumstances, each side is to bear their attorney’s fees and costs.  The balance of the arbitrator’s fee is to split equally between the parties per their stipulation.

            DATED:  Honolulu, Hawaii, December 2, 2003.




STATE OF HAWAII                                     )                      
                                                                       )           SS


            On this _____ day of __________, 2003, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

Notary Public, State of Hawaii
My Commission expires: _______________



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