Gmf Motors

GMF MOTORS G M F Motors, Inc d/b/a GMF Motors and Liber- ated Workers Welfare Union Cases 31-CA- 16640 and 31-CA-16716 March 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On December 7, 1988, Administrative Law Judge James S Jenson issued the attached decision The Union filed an exception to the judge's exclu Sion of one of its representatives from bargaining with the Respondent 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 exception and has decided to affirm the judge' s rulings, findings, and conclu- sions, as modified,' and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, G M F Motors, Inc d/b/a GMF Motors, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Order ' The judge found that the Union was not entitled to have Mark Darata act as its representative because of certain conduct engaged in by Darata regarding the Respondent as detailed in the judge s decision under E Whether Respondent must Bargain with Darata We dis agree and find no adequate basis for barring Darata from serving as the Union s representative on the basis of this record Although the judge cited the appropriate precedent Fitzsimons Mfg Co 251 NLRB 375 (1980) he misapplied the applicable test to conclude that Daratas con duct and published remarks have created such an atmosphere of ill will between himself and Respondent that good faith bargaining would be impossible if Respondent were required to bargain with Darata as a union representative We find that the Respondent has not adequately demon strated that Darata s alleged misconduct renders impossible the prospect of good faith bargaining noting in particular that following the occur rence of almost all the events relied on by the Respondent Darata served as the Union s bargaining representative at three negotiating sessions during which he is not alleged to have engaged in any misconduct We likewise find that the further conduct of Darata that occurred following these bargaining sessions i e the publication of a union newsletter that contained strong language charactenzing the nature of ongoing labor dis putes between the Union and the Respondent (essentially equivalent to remarks made in an earlier newsletter published prior to the three bar gaining sessions) did not render Darata unfit to serve as the Union s rep resentative Raymond M Norton for the General Counsel Faramarz Fayeghi, of Las Vegas, Nevada, for the Re spondent Mark J Darata of Las Vegas, Nevada for the Union DECISION 547 STATEMENT OF THE CASE JAMES S JENSON, Administrative Law Judge I heard these cases in Las Vegas, Nevada, on December 15 and 16, 1987, pursuant to charges filed on July 10 and August 26, 1987, and an order consolidating cases dated October 27, 1987 The consolidated complaint alleges, in substance, that the Respondent violated Section 8(a)(5) of the Act by refusing to provide the certified collective bargaining representative of its employees with informa tion relevant and necessary to the Union's performance of its function as the representative of Respondent's em ployees, unilaterally changing rates of pay and the method of calculating said rates, unilaterally deducting from the pay of its employees the cost to Respondent of a backpay wage claims settlement with the U S Depart ment of Labor, and refusing to meet and negotiate con cerning discrepancies in the payroll of employees The Respondent admits that it has refused to furnish certain information on the ground it contains confidential matter that is totally irrelevant to the Union s function as the representative of its employees, and that compiling the information would be unduly burdensome to it Specifi cally the Respondent contends the names, addresses, and telephone numbers of the customers listed on vehicle sales contracts and the term and status of payments set forth in the sales contracts do not affect the compensa tion of salesmen and are confidential At the hearing the Union conceded it did not need those items to fulfill its bargaining obligation Respondent also contends an im passe in bargaining preceded the institution of any pay rate changes that had been offered to the Union It also denies that it has deducted from employees pay the cost of a settlement of backpay wage claims with the U S Department of Labor Respondent also alleges it is will ing to bargain with the Union, but that Mark Darata, the Union's secretary treasurer whom it has terminated is using the Board s processes as a vehicle to get even" with it under the guise of protected union activity and that I should find as the Board did in Sahara Datsun Inc 278 NLRB 1044 (1986) that Darata is not entitled to act as a union representative with whom it has to bar gain All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross examine wit nesses to argue orally and to file briefs The General Counsel argued orally and both the Respondent and Union filed briefs all of which have been carefully con sidered On the entire record in the case, including the demean or of the witnesses, and having considered the oral argu ment and briefs, I make the following FINDINGS OF FACT I JURISDICTION It is admitted and found that the Respondent is an em ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act 293 NLRB No 55 548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATION INVOLVED As Respondent admits the fact, it is found that Liber ated Workers Welfare Union is a labor organization within the meaning of Section 2(5) of the Act III ISSUES 1 Whether Respondent has unlawfully refused to fur nish the Union with the records of all vehicle sales for the period October 1, 1986, to March 31, 1987 2 Whether Respondent unilaterally changed pay rates and the method of calculating the rates subsequent to the Union s certification in violation of Section 8(a)(5) 3 Whether Respondent unilaterally deducted from the pay of its employees the costs to Respondent of a settle ment of backpay wage claims with the U S Department of Labor 4 Whether, since June 24 1987 Respondent has re fused to meet and negotiate or discuss with the Union concerning discrepancies in the payroll of employees 5 Whether Respondent is relieved of the duty to ne gotiate with Mark Darata IV THE ALLEGED UNFAIR LABOR PRACTICES A The Facts The Respondent is engaged in the sale of used motor vehicles in Las Vegas, Nevada Faramarz Fayeghi re ferred to in the consolidated complaint and transcript as Fred Fayeghi, is Respondents president, and Loren Antin is sales manager Both are admitted and found to be supervisors and agents of Respondent within the meaning of Section 2(11) and (13) of the Act Mark Darata is the Union s secretary treasurer and its principal spokesman and Steve Geller is the Union s president Based on a secret ballot election conducted on No vember 10 1986 the Union was certified on November 19 1986, as the exclusive representative for a collective bargaining unit which includes all sales employees in cluding all used truck sales employees Following certification, the parties participated in seven collective bargaining meetings The first was some time in early December 1986 between Norman Kirsh man, an attorney, representing Respondent and Darata as spokesman for a committee of three representing the Union The record does not disclose what transpired The second meeting was on January 8, 1987,1 and lasted about 8 hours Besides Fayeghi, Malani Kotchka and David Hintzman attorneys, represented the Respondent, and Darata and Geller were present for the Union Ac cording to Hintzman, the Union presented a document outlining the areas it wished to address in negotiations According to Fayeghi, the union representatives took the position that the commission rate paid salesmen by Re spondent was unfair Respondent agreed that if other used car dealerships in Las Vegas paid a higher commis sion than Respondent, it would try to match it, and asked Darata to obtain the commission setup from Harvey Auto, Finance Auto, and Ace Auto for the next ' All dates are in 1987 unless stated to the contrary bargaining session 2 The third meeting was on January 15 Respondent provided the Union with a complete contract proposal Respondents Exhibit 3, which was discussed item by item along with the Union s ideas and proposals The Respondents pay plan proposal was for an 8 percent commission to be paid on the downpayment received on the sale of a vehicle, up to but not to exceed, $240 provided that if the downpayment was not made in full that the salesperson would receive only 70 percent of the commission as an advance draw and the remaining 30 percent on the next payday following pay ment of the remaining portion of the downpayment Cer tam limitations were to go into effect in the event the ve hicle was repossessed or the customer skipped with the vehicle' In the event commissions amounted to less than the minimum wage defined by the Fair Labor Standards Act, the salesperson was to receive the difference to bring him or her up to the minimum wage Sections 2 and 3 of the pay plan contained bonus provisions Ac cording to Fayeghi, the employer asked Darata for the commission figures paid by its competitors and was in formed he had been unable to obtain them The fourth meeting was on January 29 Hintzman testified that a re vised written contract proposal was given to the Union for that session, as with all negotiation sessions Details of the meeting and proposals were not placed in the record In order to maintain a chronological perspective of all events relating to the instant matter, reference must be made to an earlier proceeding involving the Respondent and the Union (G M F Motors Inc d/b/a GMF Motors and Liberated Workers Welfare Union Cases 31-CA- 16075 16166, 16320 and 16333) in which Administrative Law Judge Richard D Taplitz whose findings and con clusions were adopted by the Board made a number of findings pertinent to the instant proceeding 3 In his deci sion Judge Taplitz found that on January 2 1987 as a result of Darata s failure to sell enough cars to entitle him to continue using a demonstration car, Fayeghi took away a demonstration car Darata had been using that at that time Darata told Fayeghi that if he could keep the car he could keep good relations with the Company but if the Company took it away from him then he was going to do something against the Company that from that time on Darata s attitude changed and he became more hostile, that on January 30, Fayeghi found Darata in a closed office where he appeared to be taking a nap that Fayeghi told Darata that he was young and should be active instead of taking a nap like an old man that Darata replied I in sick of-sick and tired of you fuck ing boss, and this fucking place , that on the following day an employee gave Fayeghi a copy of a pamphlet that Darata had written and distributed to employees that day which made reference to a fat cat being brought down to his knees and speaks of atrocities at the Com pany that it asked employees to speak as one to the person who is robbing you and your family , that the pamphlet contained a cartoon showing a richly dressed 8 The Union apparently picketed Respondent sometime during January 1987 3 JD(SF)-103-87 GMF MOTORS individual entitled Fred (presumably Fayeghi) sitting down to a feast while pointing a knife on which is some bread, at a very thin individual that it was followed by another cartoon in which a well built individual is grab bing everything from Fred s table that on February 3 a termination letter for Darata was drafted and delivered to him which mentioned his poor recent sales perform ance and referred to the January 30 incident in which Darata told Fayeghi he was sick and tired of the fuck ing boss and this fucking place , that the letter also re ferred to the contents of the January 30 pamphlet and concluded by informing Darata he was being terminat ed today for these knowingly false and malicious, dispar aging and vilifying, flagrant and fraught with malice statements, both the oral statements on January 30 and the written statements I received on January 31 Judge Taplitz found there was no credible evidence the Com pany bore any animus toward union or other protected concerted activity, that the references made to Fayeghi in the pamphlet were unprotected and that the pamphlet was simply a pretext of union activity to disguise his personal vendetta against Fayeghi at a time when the Union and Company were engaged in bargaining, and that Darata s discharge was not unlawful Setting forth in detail his reasons for not crediting Darata, Geller, or another alleged discriminatee, Judge Taplitz dismissed the entire consolidated complaint Darata s termination letter also directed Darata not to come to Respondent' s premises or call Fayeghi, and that if he had any questions to contact Kotchka Kotchka also advised Darata that Fayeghi would not attend any more negotiations because of Darata s insults The fifth meeting to negotiate was held on or about February 5 The Respondents written contract proposals of that date are not in the record However, Darata testi fled the Union rejected pay plan B and stated it would consider plan A but needed to know whether the com mission proposed in plan A, apparently 9 percent, pro vided for an overall increase or decrease from the system already in effect It was suggested that Darata make a computation from his last 10 deals and make a report of the results at the next negotiation meeting The sixth negotiating session was on February 17 The Respondents written contract proposal (R Exh 2 and G C Exh 3) contains alternative pay plan proposals A and B Plan A is similar in some respects to the January 15 proposal but sets the commission at 9 percent instead of 8 percent as in the January 15 proposal and the maxi mum commission on a vehicle at $250 instead of $240 Alternative plan B is the system already in effect and that provided for commission amounts based on the commit ted downpayment as follows DownPayment Commission $500 or less $40 500-999 99 80 1,000-1,499 99 110 1,500-1,999 99 150 2,000-2,499 99 200 2,500 or more 250 If the downpayment was not made in full, the salesper son would receive only 70 percent of the commission as 549 an advance draw and the remaining 30 percent was to be paid when the remaining downpayment was made 4 Other provisions of the pay plan, including bonus provi sions, were the same under plans A and B According to Darata, he brought the computations concerning his last 11 deals to the February 17 meeting (G C Exh 4), which revealed that he made more under the current increment system, pay plan B (which the Union had rejected) than he would have under pay plan A calling for a 9 percent commission 5 Disagreeing as to what the figures really represented , Darata suggested they take an average for all salesmen and asked Kotchka to furnish him with information going back 6 months which Kotchka refused According to him , they then discussed other matters The seventh negotiating meeting was on March 17 with the Respondent again proposing an entire written contract 6 Hintzman testified the parties went through the proposal section by section Kotchka informed Darata that while the written proposal only contained one of the pay plans, the other was still open if the Union wanted it According to Darata , he stated he was still considering it but needed more information in order to know whether to accept or reject it, and asked that the Employer furnish him with information disclosing the committed downpayment, the exact downpayment and the commission actually paid on each vehicle deal made in the last 6 months, and verify these figures by either the name of the customer or through some other means so that authenticity could be checked He needed that information , he claimed, so that he could draw an average, as he had done in the last meeting with his own sales figures He testified Kotchka refused and stated the March 17 offer was the employers last final , and best offer and that she wanted him to commit to every issue According to Darata Kotchka took the position that an impasse had been reached and that the Union had until the end of the month to accept the Respondents final proposal, at which time it would be implemented Around noon on March 31 , the Union delivered a pro posal to Kotchka which purportedly contained conces sions that the Union was willing to make A copy of the proposal was not produced at the hearing nor was there testimony concerning its contents Kotchka responded by letter bearing the same date Among other things, the letter extended the date for accepting Respondents final 4 While not clear in the record on the basis of Darata s testimony I conclude the February 5 and 17 pay plan proposals were identical 6 The total figures and percentage computed by Darata in G C Exh 4 are not accurate The total for the downpayment column is $13 435 in stead of $14786 the total for commissions received under plan in effect now is $ 1300 instead of $1410 the total for the column computing com missions at 9 percent is $1209 15 instead of $1330 74 and the figure show ing the percentage of commissions under the present system pay plan B to total downpayments is 9 67 percent instead of 9 54 percent as comput ed by Darata 6 R Exh 4 and G C Exh 5 both bear the title page date of March 17 and purport to be the Respondents March 17 proposal However they differ in certain respects particularly in that the pay proposals are not the same G C Exh 5 contains the increment system already in effect and R Exh 4 contains both pay plans A and B as in the February 17 proposal I am convinced from the testimony that G C Exh 5 is the cor rect employer proposal 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD offer until April 8 at which time it was to be unilaterally implemented 7 The record fails to establish, however that any changes were made on or after April 8 in pay rates, wages, or other conditions of employment from those that existed prior to that date or the date of certifi cation In this regard, Darata testified that the increment pay system that had been used in the past was still in effect at the time of the hearing, and Fayeghi testified it had been in effect since 1985 8 Further, the General Counsel stated specifically that he was not alleging any unlawful conduct with respect to bonuses By letter dated May 1, Hintzman notified Darata that the law firm in which he was associated would no longer be repre senting Respondent, and asking him to direct inquiries regarding bargaining matters to Joan Tingson at Re spondent s premises On May 3, Darata and Geller went to Respondent's business location and, finding Tingson had not been there for a couple of days, left three letters with Fayeghi's sister Although General Counsels Ex hibit 7 is addressed to Tingson, and asks that the Union be provided with `copies of all the vehicle sales made by all the sales people for the time period of October 1, 1987 up to and including March 31, 1987, Darata's letter states, "I need to see without the presupposed pos sibility of G M F Management altering figures, the par tial downpayment procured by the sales people, the total committed downpayment procured by sales people and ultimately the commission draw and wash out commis sions the sales people were making These vehicle deals will show me exactly how much the sales people are being paid with respect to the downpayment the custom ers are paying 9 General Counsels Exhibit 8 accuses the Respondent of not properly paying the 30 percent commissions to its sales employees, and requests a meet ing to settle this matter at once "10 The third letter, which is not in evidence, contained a request for the names and addresses of employees which was furnished to the Union On May 13, Darata called Fayeghi and was told that Antin would represent Respondent in dealings with the Union Contacted by Darata, Antin stated he did not know anything about the negotiations or information re quested but that he would talk to Fayeghi and get back to him On May 26, Antin wrote Darata to the effect that after the unfair labor practice hearing scheduled for May 2811 the Respondent would review your pay period ' Darata apparently filed an unfair labor practice charge against Respondent on June 4 12 On June 16 he 7 Darata thought he had contacted Kotchka with respect to a union counterproposal which she rejected The details of the proposal are not in the record 8 Respondents brief however states that following impasse the Em ployer adjusted the commission structure to that reflected in the pro posed contract which LWW rejected on March 31 1987 The evidence above and the Union s brief make it clear that the increment commission structure did not change at any time 8 The letter appears to have been originally intended for Kotchka and makes reference to unfounded unfair labor allegations is This letter also contains an unfounded unfair labor allegation i l Before Administrative Law Judge Taplitz referred to earlier 12 Fayeghi claimed the Union has filed 23 nonmeritorious unfair labor practice charges against Respondent and that 21 of them have been with drawn or dismissed as lacking merit by either the Regional Director or called Antin again and was informed Respondent did not want to provide any information or negotiate because of the recently filed charge and the fact Fayeghi felt Re spondent did not have to negotiate further in view of its last and final offer He also stated he did not feel Re spondent had to divulge any information since Darata worked for Ace Auto, a competitor According to Darata, Antin stated he was going to take over comput ing the 30 percent money and that minimum wage would be given as a draw on the 30 percent to salesmen that at that time he was implementing a plan that on a'biweekly basis employees would get wash out from commissions that if any salesman made less than minimum wage in a week, he would get the minimum wage and the amount advanced to bring the employee up to the minimum wage would be deducted the follow ing week out of the employee's commissions " Darata testified this system had never been used before and that it constituted a unilateral change According to Darata, Antin told him that Respondent had been making deduc tions from the 30 percent money to reimburse Respond ent for a settlement it had entered into with the Depart ment of Labor for not paying the minimum wage, which had cost Respondent `some $10,000' By letter dated June 22, Antin informed Darata that Respondent would not furnish him with copies of contracts for the last 6 months, but would furnish a list of vehicles by the year, make, model, total price and how much commission was paid on it and if he had a question on any particular contract, a copy could be furnished A couple of days later Darata called Antin and suggested that Antin send him the sales contracts previously requested with the name of the customer blocked out According to Darata Antin said that would make the job easier and he would get busy on it but that it would take 2 months since he had to do it himself Darata testified that he asked for a grievance session to discuss the new pay program whereby you re drawing the commissions out? And discuss how money was taken out of 30 percent money to pay the minimum wage settlement? Antin's response was to the effect that Respondent did not have to bar gain over that issue On July 6 Darata called Antin again and learned that Respondent was refusing to give him copies of the contracts as promised and proposing to give him the information in handwritten form and if Darata wanted authentication, to bring in a mediator to check figures According to Darata, Antin said he could have it at no cost but that it would take time to compile because he had to do it himself Darata also asked for a grievance meeting over the 30 percent money and was told Fayeghi would not let him set up grievance sessions Approximately a month later, Darata called Antin and was informed that Fayeghi would not let him give Darata any information or meet with him over the 30 percent commission reserve According to Fayeghi 35 to 40 percent of Respond ent s business is from repeat customers who are financed by Respondent Consequently he did not want to reveal Administrative Law Judge Taplitz The General Counsel neither con firmed nor denied this claim GMF MOTORS 551 the names of customers listed on the sales contracts to Darata because he worked for a competitor Fayeghi stated he also objected to disclosing the terms of the fi nancing arrangements, other than the deferred downpay ment because Respondent did its own financing and the weekly or monthly payments did not affect the salesper son's commissions that were based solely on downpay ments Fayeghi stated during the hearing that he had no objection to furnishing copies of the sales contracts that had been requested as long as data identifying the pur chaser and the terms of financing, other than the down payment on which commissions were computed, was de leted B Discussion 1 Failure to furnish information Paragraphs 9, 10, and 11(a) of the consolidated amend ed complaint allege that since on or about May 5, 1987, Respondent has refused to furnish the Union with the records of all vehicle sales from October 1, 1986, through March 31, 1987, which is relevant and necessary to the Union s performance of its function as the exclu save collective bargaining representative of the employ ees represented by the Union The Respondent does not contend that all the information contained in the sales contracts is irrelevant to the Union, but declines to fur nish the data that would identify the purchasers and the financing arrangements other than the cash and deferred cash downpayment The Union concedes it has no inter est in the identity of the purchasers13 or the financing arrangements other than the cash and deferred cash downpayment Accordingly, I find that, except for infor matron that would identify the purchasers and the financ ing arrangements other than the cash and deferred cash downpayment, the balance of the information on the sales contracts is relevant and necessary to the Union s performance of its function as the exclusive collective bargaining representative of the employees in the certi fled unit As Respondent has failed to furnish that infor matron, which I find is relevant and necessary, it is axio matic that it has failed to meet its bargaining obligation in violation of Section 8(a)(5) of the Act 2 Change in pay rates Paragraph 11(b)(i) of the consolidated amended com plaint alleges the Respondent unilaterally changed the pay rates and method of calculating the pay rates of the unit employees The General Counsel contends this alle gation is `supported by Darata s testimony and by doc umentation that purports to show that Respondent com menced deducting the minimum wage draw from the 30 percent reserve following certification With respect to the unilateral change in the pay rate allegation, the record shows that at all relevant times prior to and since certification, Respondent has utilized the same increment system in computing commissions In this regard, Darata testified that the increment pay 13 Other than having a third party check the original sales agreement should any question apse as to the authenticity of the copies of the sales agreements which the Respondent would furnish it system used in the past was still in effect at the time of the hearing Furthermore, Fayeghi testified the same system had been in effect since 1985 Regarding the al leged unilateral deduction of the minimum wage draw from the 30 percent reserve, to quote from the Union s brief `The minimum wage draw issue is indeed a confus ing one Confusing in that the Union sought to show the minimum wage had never been deducted from the 30 percent reserve pnor to certification through subpoe naed documents relating to an employee that was not hired until February 1987 Fayeghi testified that Respondent commenced paying a guaranteed minimum wage in July 1986 in situations where the salesperson's commissions did not equal or exceed the Federal minimum wage requirement, pursuant to instructions from the Nevada Department of Labor At the same time, he testified, the policy of deducting the minimum wage from the 30 percent reserve was commenced This practice received the approval of a representative of the wage and hour division of the U S Department of Labor in February 1987 Darata stated he first learned about Respondent's policy of supplementing commissions to bring earnings up to the minimum wage and then ' wash the supplement out, or deduct it from the 30 percent reserve when the reserve had built up, from Antin on June 16, 1987 He also testified that while he worked for Respondent and received minimum wage ' quite some times, ' it was never deducted from his 30 percent reserve Antin, who had worked for Respondent as a salesman before the election and had been a union supporter, left Respondents employ right after the elec tion and returned in January 1987 as sales supervisor after Darata had asked Fayeghi to rehire him Shortly after returning, he was put in charge of making the 30 percent reserve calculations that are made the 15th of every month He testified that while he did not know when the practice of deducting the minimum draw from the 30 percent reserve commenced, deductions for mini mum wages he had received as a salesman had been de ducted from his 30 percent reserve prior to the election Earl Bolton who was first employed by Respondent as a salesman in 1986, testified that he had received minimum wage checks on several occasions and they had later been deducted from his 30 percent reserve The proce dure had been explained to him at the time he was hired in 1986 Other employees hired in 1987 also testified that their minimum wage draws had also been deducted from their 30 percent reserve Contrary to Darata, whom I do not credit, the overwhelming evidence establishes that the practice of deducting the minimum wage draw from the 30 percent reserve was in effect pnor to the election, and the continuation of the practice after the election and certification did not constitute a unilateral change Accordingly I recommend dismissal of paragraph 11(b)(i) of the consolidated amended complaint 3 Labor Department backpay wage claim Paragraph 1l(b)(n) alleges that subsequent to the elec tion the Respondent unilaterally deducted from the pay of employees the costs to Respondent of backpay wage claims between Respondent and the U S Department of 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Labor In support of this allegation, Darata testified that in June, when he received his final 30 percent reserve check, a deduction had been made which, he claimed, Antm said was because of the Wage and Hour Divi sion s minimum wage settlement' which came to $10,000 Darata claimed he requested, and Antin refused, to meet with him over the matter Fayeghi denied any deductions were made from employees wages to reim burse Respondent for the costs of a backpay wage settle ment with the Department of Labor, and Christy Lea vitt, Respondents bookkeeper, who was recalled as a witness by Darata on behalf of the Union, denied any de ductions from employees regular payroll or the 30 per cent reserve were made except for required statutory de ductions Darata is not credited Accordingly, the Gener al Counsel has failed to establish by a preponderance of the evidence that Respondent violated the Act as alleged in paragraph 11(b)(u) 4 Discrepancies in the payroll Paragraph 11(c) alleges that since on or about June 24, Respondent has refused to meet and negotiate with the Union concerning discrepancies in the payroll The Gen eral Counsel bases this allegation on telephone calls be tween Antin and Darata on June 16 and 22 The record shows that by letter dated May 3 (G C Exh 8), Darata took the position the Respondent was not properly paying employees their 30 percent reserve As set forth earlier, Darata testified that during a conversation with Antin on June 16, concerning his request for copies of the sales contracts and his contention the Respondent was withholding money from the 30 percent reserve to reimburse itself for the wage and hour settlement he asked to meet for a grievance session to at least tell me if I have any 30 percent money due He testified that on June 24 he asked Could we also discuss this problem of 30 percent money just not getting paid for whatever reason, and us not knowing the status of each one of these 30 percent deals? Could we also discuss the prob lem of the new pay program whereby you re drawing the commissions outs Antin s response was, We don t have to negotiate just to give you this information Re spondent appears to claim that its declaration that an im passe had been reached in March ended its bargaining obligation That position is totally unfounded While in certain circumstances the bargaining obligation may be suspended when a valid impasse is reached, the duty to bargain is not terminated Nor is it suspended when the employer has refused to bargain by refusing to provide information relevant and necessary to the Union s per formance of its function as bargaining agent In view of Respondent's refusal to furnish the Union with the infor mation requested from the sales contracts found to have been unlawful, a bona fide impasse did not exist when it refused to meet with the Union regarding the 30 percent reserve By such conduct Respondent failed to meet its bargaining obligation in violation of Section 8(a)(5) of the Act United Contractors 244 NLRB 72 (1979) Palo mar Corp, 192 NLRB 592 (1971) 5 Whether Respondent must bargain with Darata Although Respondent is not charged with refusing to meet with Darata, the Respondent contends it should not be required to deal with Darata as the representative of the Union since he is using his position as an officer of the Union as a vehicle to vindicate himself personally against GMF Motors for his termination and to get even, under the pretext of a protected union activity In support of its position, Respondent relies on Judge Taplitz earlier decision involving Darata's alleged un lawful termination, the contents of a pamphlet Darata issued shortly before the hearing in this matter , and the Board s decision in Sahara Datsun , 278 NLRB 1044 (1986), in which it found that Darata s conduct had cre ated such an atmosphere of ill will between himself and the employer that good faith bargaining would be impos sible if the employer were required to deal with him as the union representative In Fitzsimons Mfg Co, 251 NLRB 375 (1980), the Board stated at 379 It is well established that each party to a collective bargaining relationship has both the right to select its representative for bargaining and negotiations and the duty to deal with the chosen representative of the other party However where the presence of a particular representative in negotiations makes collective bargaining impossible or futile, a party s right to choose its representative is limited, and the other party is relieved of its duty to deal with that particular representative The test, as stated in KDEN Broadcasting supra is whether there is per suasive evidence that the presence of the particular individual would create ill will and make good faith bargaining impossible ' ° 225 NLRB at 35 In my view Darata s conduct has been sufficiently egregious to make bargaining with him as the Union s representative impossible As found by Judge Taplitz in the earlier case between the Union and Respondent on January 2 Darata threat ened to do something against the Company when a dem onstration car was taken away from him after he failed to sell enough cars to entitle him to use a demonstrator, that from that time on he became more hostile toward Respondent, on January 30, he told Fayeghi, I'm sick and tired of you fucking boss, and this fucking place" on January 31, he distributed a pamphlet charac tenzing Fayeghi as a "fat cat robber who was commit ting atrocities against his employees " The above con duct occurred during the period the parties were negoti ating and prior to any alleged unlawful conduct on the part of Respondent Judge Taplitz found that the refer ences to Fayeghi in the pamphlet were unprotected by the Act and appeared to be a verbal assault on Fayeghi for Darata s personal reasons " Noting that the pamphlet was not part of any organizational activity as the Union was already certified and there was no indication he was attempting to rally employees for strike activity, Judge GMF MOTORS Taplitz found that Darata s use of the union pamphlet was simply a pretext of union activity to disguise his per sonal vendetta against Fayeghi ' He also found that there was no credible evidence to even arguably estab lish that the Company bore any animus toward the Union or other protected concerted activity On September 28, 1987 approximately a month after issuance of the complaint in Case 31-CA-16640, and less than 3 months prior to the instant hearing, Darata au thored and issued another pamphlet calling for employ ees to support the Union and to come to union meetings It alleges that sales people are financing the customers at GMF Motors, whereas normally the car lot or fl nancial insitutions loan money, that sales people s par tial commission (30 percent) is paying the customers taxes, doc fees and smog , that the downpayment goes to Fred , and asks why do the sales people lose all the commission if the vehicle is REPOEDT The pamphlet characterized the working conditions of salespeople as ` atrocities and Fayeghi as a villain On the pamphlet is a cartoon showing a fat individual entitled Fred kneeling at bedside praying and please, don t let the new sales people find out that they have a UNION' They already suspect me of stealing from them now If they re educated, on my tactics, they 11 be H E L L to deal withll" It is followed with a second cartoon of a drolling dragon spitting out the words LIES SLAN DER ROT, and clutching a bag labeled 30% $ OURS A black cat labeled Sales people is perched on the bag, and GMF MOTORS is imprinted across the bloated stomach of the dragon An individual labeled ` L W W has hold of the dragons tail and ap pears to have tied two knots in it Adjacent to the dragon is the following legend DON'T BELIEVE WHAT FRED TELLS YOU,, We can win as a TEAM" TOGETHER the UNION and the sales people can work on this thieving employer from both ends' SOLIDARITY and persistence is the key to winning our DEMANDS"' In my view, the latest pamphlet is an additional male cious assault on Fayeghi in furtherance of Darata's per sonal vendetta against him In Sahara Datsun supra, the Board found that while the respondent there had engaged in extensive unfair labor practices, including refusal to bargain Darata s conduct created such an atmosphere of ill will between him and the respondent that good faith bargaining would be impossible if the respondent were required to deal with him as the union representative 14Accordingly, it 14 Although not a part of the record in Sahara Datsun Darata admit ted when questioned by Respondent that following the hearing in that matter he got into a fight which Darata characterized as a brawl with officials of that company on company premises 553 was found that he was not entitled to act as a union rep resentative In that case Darata had made false accusa tions to a bank regarding the respondents credit applica tions and had published a newsletter accusing the re spondent s officers of sex and drug offenses The Board concluded that Darata s intent was primarily to disparage the reputation of the respondents officials in the eye of both the bank and the respondents employees Citing Fitzsimons Mfg Co supra, the Board stated When an individual engages in conduct directed at the employer or its representatives which engenders such ill will that it weakens the fabric of the relationship to the extent that good faith bargaining is impossible we recognize an employers right to refuse to meet and bargain with that individual I conclude that Darata's conduct and published re marks have created such an atmosphere of ill will be tween himself and Respondent that good faith bargaining would be impossible if Respondent were required to bar gain with Darata as a union representative Accordingly I find that he is not entitled to act as a union representa tive CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 All sales employees including all used truck sales employees, employed by the Respondent at its 3340 East Fremont Street facility excluding all other employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 At all times since November 10, 1986, the Union has been the exclusive representative of the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 By refusing to furnish the Union with the records of all vehicle sales for the period October 1, 1986 through March 31 1987 with the names and addresses of the customers and the payment terms, other than deferred cash downpayment, deleted, Respondent violated Sec tion 8(a)(5) and (1) of the Act 6 By refusing to meet and negotiate with the Union concerning the 30 percent reserve, Respondent violated Section 8(a)(5) and (1) of the Act 7 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 8 Respondent has not committed any other unfair labor practices alleged in the consolidated complaint THE REMEDY Having found that the Respondent violated Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist, bargain on request with the Union on request supply the requested information, and if an un derstanding is reached to embody the understanding in a signed agreement Although the consolidated complaint alleges on or about May 5 1987 as the date Respondent first unlawfully refused to provide the Union with infor 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD matron relevant and necessary to its bargaining function, the uncontested testimony shows that March 17, 1987, was the first time Respondent refused to furnish the in formation, indicating that from early December 1986 until mid March 1987, a period of roughly 3 months the parties engaged in good faith bargaining It is well set tied that when a party refuses to bargain during the cer tification year, the Board will extend the certification year to prevent that party from gaining an advantage from its failure to carry out its bargaining obligation Mar Jac Poultry Co, 136 NLRB 785 (1962), Lamar Hotel, 140 NLRB 226 (1962), enfd 328 F 2d 600 (5th Cir 1964), cert denied 379 U S 817 (1964) Burnett Construc non Co, 149 NLRB 1419 (1964), enfd 350 F 2d 57 (10th Cir 1965) Accordingly, I conclude that a 9 month ex tension of the bargaining year is appropriate in the cir cumstances presented here On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed'5 ORDER The Respondent G M F Motors, Inc d/b/a GMF Motors, Las Vegas, Nevada, its officers, agents, succes sors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with Liberated Workers Wei fare Union as the exclusive bargaining representative of the employees in the bargaining unit (b) Refusing to supply the Union with information necessary and relevant to its role as the exclusive bar gaining representative of the employees in the bargaining unit (c) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro pnate unit concerning terms and conditions of employ ment and if an understanding is reached embody the un derstanding in a signed agreement All sales employees including all used truck sales employees employed by the Employer at its 3340 East Fremont Street facility, excluding all other em ployees guards and supervisors as defined in the Act (b) On request supply the Union as it has requested with information found to be necessary and relevant to its role as the exclusive bargaining representative of the employees in the unit 25 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 (c) Post at its facility in Las Vegas, Nevada, copies of the attached notice marked Appendix 16 Copies of the notice, on forms provided by the Regional Director for Region 31 after being signed by the Respondents au thorized representative, shall be posted by the Respond ent immediately on receipt and maintained for 60 consec utive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER RECOMMENDED that paragraphs 11(b)(i) and (u) of the consolidated complaint be dismissed 'B If this Order is enforced by a judgment of a Unit„d States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT refuse to bargain with Liberated Work ers Welfare Union as the exclusive representative of the employees in the bargaining unit WE WILL NOT refuse to supply the Union with infor mation necessary and relevant to its role as the exclusive bargaining representative of the employees in the unit WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL on request bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar gaining unit All sales employees, including all used truck sales employees employed by the Employer at its 3340 East Fremont Street facility excluding all other em ployees guards and supervisors as defined in the Act WE WILL, on request, supply the Union with the infor mation previously requested which is necessary and rele vant to its role as the exclusive collective bargaining rep resentative of the employees in the bargaining unit G M F MOTORS, INC D/B/A GMF MOTORS