Gmf Motors

National Labor Relations Board - Board Decisions

Mar 30, 1989

293 N.L.R.B. 547 (N.L.R.B. 1989)

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