FCA US LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 5, 2019

07-CA-219895 (N.L.R.B. Nov. 5, 2019)

JD–86–19
Dundee, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FCA US LLC
and Cases 07-CA-219895
07-CA-221914
LOCAL 723, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL-CIO
Eric S. Cockrell, Esq.,
for the General Counsel.
Darlene Haas Awada, Esq.,
Mr. Clifford Terry, Jr.1
for the Respondent.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case was tried in Detroit,
Michigan on February 7 and 8, 2019. Local 723, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (Union or Local
723), filed the charge in case 07-CA-219895 on May 8, 2018, filed the charge in case 07-CA-
221914 on June 12, 2018, and filed an amended charge in Case 07-CA-221914 on July 10, 2018.
(GC Exh. 1(a), (c), (e).) The General Counsel issued the order consolidating cases, consolidated
complaint, and notice of hearing (complaint) on September 27, 2018.2 (GC Exh. 1(g).) The
complaint alleges that FCA US LLC (Respondent) violated Section 8(a)(5) and (1) of the
National Labor Relations Act3 (Act) by failing and refusing to provide certain information to the
Union and by unreasonably delaying in providing other information to the Union.4 (GC Exh.

1 Respondent moved to correct the transcript in that Mr. Clifford Terry is incorrectly identified as
“Clifford Terry, Esq.” Respondent’s motion is granted.
2 All dates are in 2018 unless otherwise indicated.
3 29 U.S.C. §§151–169.
4 At the hearing, the General Counsel filed a Motion to Amend the Consolidated Complaint, which I
granted. (GC Exh. 1(l); Tr. 6-7.) Respondent denied the allegations contained in the amendment. (Tr. 8.)
Respondent also moved to have paragraphs 7(a) and 7(b) of the complaint dismissed as containing
allegations not set forth in the underlying charges. (Tr. 8.)
JD–86–19
2
1(g).) Respondent timely answered the complaint, denying the relevant allegations and asserting
8 affirmative defenses.5 (GC Exh. 1(j).) As set forth fully below, I find that the General Counsel
has established that Respondent violated Section 8(a)(5) and (1) of the Act as alleged in the
complaint.
5
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. On the entire record, including my own
observation of the demeanor of the witnesses, 6 and after carefully considering the briefs filed by
the parties, I make the following
10
FINDINGS OF FACT
I. JURISDICTION
FCA US LLC, a Delaware limited liability company, has been engaged in the manufacture, 15
nonretail sale, and distribution of automobiles from numerous facilities, including its facility in
Dundee, Michigan, where annually purchases and receives goods valued in excess of $50,000
directly from points outside of the State of Michigan. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. (GC
Exh. 1(j).) 20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business and Labor Relations
25
Respondent operates an engine plant in Dundee, Michigan, about 50 miles from Detroit. (Tr.
22-23.) Robert Daragon is the human resources manager at the Dundee Engine Plant. (Tr. 238.)
Nick Weber, Jr., is the labor relations supervisor there. (Tr. 177.) Eliza Lanway has been the
labor relations representative at the Dundee Engine Plant since about February 2018. (Tr. 252.)
Previously she served a human resources generalist. (Tr. 255.) Joanna Carr was a human 30
resources generalist for Respondent. (GC Exh. 1(j).) Lanway reports to Weber, who reports to
Daragon. (Tr. 238, 253.) Chris Lewis is a business unit leader of Respondent. (GC Exh. 9; R.
Exh. 4; Tr. 75, 195.) Respondent admits, and I find, that Daragon, Weber, Lanway, Carr, and
Lewis are supervisors of Respondent within the meaning of Section 2(11) of the Act. (GC Exh.
1(j).) 35
Approximately 600 employees at the Dundee engine plant are represented by Local 723. (Tr.
23.) Local 723 is the designated servicing representative of the International Union, UAW
(International Union), at the plant. Mark Willingham serves as a chief steward for the Union.
(Tr. 23.) In this capacity, Willingham represents about 200 employees on second shift. (Tr. 24.) 40

5 Respondent answered the complaint on October 10, 2018 and filed an amended answer on January
22, 2019. (GC Exh. 1(i) and (j).) In the record, Respondent’s original answer to the complaint is missing
pp. 3-6. Respondent’s amended answer shall be referred to as its “answer.”
6 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible testimony
and evidence presented at trial, as well as logical inferences drawn therefrom.
JD–86–19
3
His duties include enforcing the parties’ collective bargaining agreement and representing unit
members. (Tr. 25.) Willingham has been employed by the Union in various capacities since
June 2014. (Tr. 24.) Eric Jackson is the Union’s production committeeman. (Tr. 146.) Lorenzo
Jamison, Sr., is the Union’s shop chairman at the Dundee Engine Plant. (Tr. 146.) Jamison has
held this position since May 2017, and he is the highest-ranking Union official at the plant. (Tr. 5
146.) Respondent admits, and I find, that International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW), AFL-CIO (International Union) and
its Local 723 are both labor organizations within the meaning of Section 2(5) of the Act. (GC
Exh. 1(j).)
10
When grievances are filed, Willingham handles Step 1, Jackson handles Step 2, and Jamison
handles Step 3. (Tr. 45.) Respondent’s labor relations department, headed by Weber, handles
discipline of bargaining unit employees. (Tr. 184.) However, the labor relations department is
not responsible for the discipline of non-unit, salaried employees. (Tr. 184.)
15
B. Respondent’s Employee Rules and their Application
Respondent and the International Union have been parties to a series of collective bargaining
agreements, the most recent of which became effective on October 22, 2015. This agreement,
referred to in the record as the “gold book” because of the color of its cover, also lists several 20
local unions, including Local 723, as parties to the agreement. (J. Exh. 1.) The gold book
contains a progressive disciplinary policy. (J. Exh. 1, pp. 39-41; R. Exh. 3.) Letters,
Memoranda, and Agreements reached between the parties are contained in a separate book,
referred to as the “silver book.”7 (GC Exh. 13.) Respondent maintains standards of conduct and
a code of conduct for all employees. (GC Exhs. 12, 15.) Respondent further maintains an anti-25
harassment policy applicable to all employees. (GC Exh. 16.)
Schedule A of the gold book lists the collective bargaining units covered by its terms. (R.
Exh. 1; Tr. 177.) The unit at issue in this case is
30
All full-time and regular part-time production and maintenance employees
employed by Dundee Engine Plant (formerly known as Global Engine
Manufacturing Alliance) at its facility located in Dundee, Michigan, but excluding
office clerical employees, engineers, guards, and supervisors as defined in the
Act.35
(R. Exh. 1., par. 13; Tr. 177-178.)
Respondent further maintains a Joint Team Leader Selection Training and Procedure Manual.
(GC Exh. 14.) This manual contains the selection process and criteria, as well as a removal 40
procedure, for team leaders. (Id.)

7 The silver book also contains a disciplinary policy, in as far as it gives an appeal board the power to
determine the propriety of a penalty imposed on an employee. (GC Exh. 13, pp. 19-20.)
JD–86–19
4
C. February 20 Information Request
Respondent’s Joint Team Leader Selection Committee (JTLSC) selects employees to serve
as team leaders. (Tr. 160, 206.) Both management and the Union have representatives on the 5
JTLSC. (Tr. 159, 206.) The JTLSC is also responsible for investigating team leaders for
possible removal. (Tr. 206.) The removal process can be initiated by management or team
members. (Tr. 207-208.) When a team leader is investigated for possible removal, input is
sought from management, team members, and the team leader. (Tr. 208.) Interviews of team
members are conducted by a member of management and a union member on the JTLSC. (Tr. 10
208-209.)
On February 14, Robert Watts, Jr., was removed as a team leader by Respondent. (GC Exh.
3.) The JTLSC investigated of Watts’ removal as a team leader. (GC Exhs. 6, 14; Tr. 208-209.)
Nick Weber, Jr., Respondent’s labor relations supervisor, is a member of the JTLSC and was 15
present for all six team member interviews related to Watts’ removal. (Tr. 226.) Chief Steward
Mark Willingham filed two grievances related to Watts’ removal. (GC Exhs. 2, 3, 5; R. Exhs.
14, 15; Tr. 58-59.)
On February 20, Willingham sent an email to Bob Daragon, Respondent’s human resources 20
manager, seeking information.8 (GC Exh. 6; Tr. 40.) In his email, Willingham sought “[A]ll
team member interview forms that pertained to [Watts’] removal as team leader.”9 (GC Exh. 6.)
Daragon provided Willingham’s email to Weber. (Tr. 209.) On March 2, Weber responded to
Willingham’s email, attaching the package used by the JTLSC and two team member interview
forms. (GC Exh. 6; Tr. 56, 211.) Weber scanned and sent over 200 documents to Willingham in 25
response to this information request.10 (Tr. 210.)
By May 24, the Union believed that more than two people were interviewed regarding Watts’
removal. (Tr. 151, 240.) During a meeting with Daragon, the Union asked why additional team
member interview forms were not provided in response to its request for information.11 (Tr. 57, 30
151, 212, 240.) Weber stated that the forms were not originally provided to the Union because
of what it deemed a mistake.12 (Tr. 58, 212-213.) Daragon called Weber into the office and

8 At the hearing, the General Counsel sought first to admit a series of emails between Willingham and
others related to this information request as General Counsel’s Exhibits 6A, 6B, and 6C. The General
Counsel later withdrew these separately numbered exhibits and sought to admit the emails and an
attachment as General Counsel’s Exhibit 6. The Exhibit was admitted as such. (Tr. 62.)
9 Although Willingham’s email requested other pieces of information, these requests are not part of
the General Counsel’s complaint. (GC Exhs. 1(g) and 2.)
10 Weber’s testimony on this point is uncontroverted. A copy of the attachment to Weber’s email was
not entered into evidence.
11 For reasons discussed later in this decision, I find that there was a single meeting between the
Union and Respondent regarding the team member interview forms in May.
12 Willingham testified that Daragon said the failure to provide the additional interview forms was a
mistake and that Weber said that the additional team member interview forms were not important. (Tr.
58.) Daragon’s and Jamison’s testimony did not mention anything regarding a mistake. Weber denies
making this statement. (Tr. 213.) I credit Weber in this instance, as Willingham’s version was
uncorroborated.
JD–86–19
5
instructed him to provide any additional statements to the Union. (Tr. 58, 150, 213, 241.) The
forms were sent to Jamison and Willingham as an email attachment within twenty minutes of the
meeting. (GC Exh. 6; Tr. 213.) Four additional team member interview forms were sent by
Weber. (GC Exh. 6.) Two of these statements weighed in favor of Watts’ removal and two
weighed against it. (Tr. 214-216.) 5
At the hearing, Respondent conceded that the information sought in this information request
was both relevant and necessary to the Union’s role as its employees’ collective-bargaining
representative. (Tr. 51.) Jamison ultimately withdrew Watts’ grievances at Step 3 on November
29, indicating that the Union agreed that the removal was proper. (GC Exhs. 3, 5; R. Exhs. 14, 10
15, 17; Tr. 59, 154, 218.)
Watts’ grievance forms and the minutes of the grievance meeting indicated that they were
“WWP.” (GC Exh. 5; R. Exhs. 14, 15, 17.) Weber testified that this means “withdrawn without
precedent” and that the grievances could not have been reinstated. (Tr. 232.) Willingham 15
testified that WWP means either “withdrawn without precedent” or “withdrawn without
prejudice.” (Tr. 264.) A grievance withdrawn without prejudice may be reinstated within 3
months of withdrawal. (J. Exh. 1, p. 34, par. 30(b).) If a grievance is withdrawn without
precedent, it may not be reinstated. (J. Exh. 1, p. 35, par. 30(b).)
20
D. April 17 Information Request
On April 16, unit employee Kelli Newkirt received a 3-day disciplinary suspension for
failing to exert normal effort on the job, failure to follow instructions, inappropriate conduct, use
of threatening/intimidating language, and returning late from a break. (GC Exh. 7; R. Exh. 2.) 25
On her disciplinary form, Respondent indicated that Newkirt violated five of its Standards of
Conduct (SOC). (GC Exhs. 7, 12.) Willingham and another Union official prepared a grievance
on Newkirt’s behalf regarding the discipline.13 (GC Exh. 8; R. Exh. 10; Tr. 65.)
On April 17, Willingham submitted an information request regarding Newkirt’s grievance 30
via email to Weber, Lewis, and others at FCA. (GC Exh. 9; Tr. 184.) Among the requested
information was
. . . 3) Provide copy of taxi “pulls” for Kelli Newkirt for the past two weeks.14 4)
Provide copy of taxi “pulls” of the entire taxi team on 2nd shift for the last two 35
weeks. 5) Provide production numbers each day of full production for the last 2
weeks.15 6) Please provide a list of all individuals disciplined for violations of
SOC #3, #5, #6, #11, and #14 in the past two years, hourly and salary. 7) Please
provide a list of all discipline served for SOC violations of SOC #3, #5, #6, #11 in
the past two years, hourly and salary . . . The information I have requested has 40

13 The Union also filed a grievance on Newkirt’s behalf alleging harassment by 2 supervisors in May.
(R. Exh. 11.)
14 Taxi pulls are requests to deliver parts from the material handling department to the assembly line.
(Tr. 77.)
15 Production numbers are the number of engines produced at the Dundee Engine Plant on a given
day. (Tr. 186-187.)
JD–86–19
6
relevance to a grievance and its investigation. [The] Union needs this
information to bargain intelligently and or to adjust or resolve grievances.
(Emphasis in original.) (GC Exh. 9; R. Exh. 4.) Some of these requests seek information
regarding non-bargaining unit employees. However, Respondent’s SOC and Code of Conduct 5
(COC) apply to all employees. (Tr. 78, 248-249, 260-261.) Willingham sought information on
non-unit employees to see if salaried employees were treated the same as unit employees for
violations of Respondent’s SOC. (Tr. 80.)
Willingham sought Newkirt’s taxi pull information and taxi pull information for the entire 10
second shift in order to evaluate Newkirt’s work effort considering the number and types of pulls
performed by others. (Tr. 78.) Willingham sought production numbers to see if the numbers
met Respondent’s requirements. (Tr. 78.) It was Willingham’s position that if production
requirements were met, Newkirt’s alleged failure to exert normal effort had no effect on
production or assembly. (Tr. 78.) 15
On April 23, Weber responded to Willingham’s information request by asking for another
day to respond. (GC Exh. 9.) On April 24, Weber responded to the information request by
providing some of the requested information. (GC Exh. 9; R. Exh. 5.) However, Weber
indicated that Respondent did not understand the relevance of the requests for taxi pulls for 20
Newkirt or her entire shift, production numbers, or information concerning the discipline of non-
bargaining unit employees. (GC Exh. 9; R. Exh. 5; Tr. 195.)
Willingham sent an email to Weber on April 24, explaining why the Union requested the
information and the relevance of the requests. (GC Exh. 9; R. Exh. 6.) Willingham stated that, 25
“[The] Union needs this information to bargain intelligently and or (sic) to adjust or resolve
grievances.” (GC Exh. 9; R. Exh. 6.) He also stated that the Union needed Newkirt’s taxi pull
information and the information for her entire shift, “to intelligently review the data.” (GC Exh.
9; R. Exh. 6.) Willingham stated that the Union required the production numbers, “to
intelligently review data to determine a resolution or process future grievances.” (GC Exh. 9; R. 30
Exh. 6.) Regarding the request for information concerning non-bargaining unit employees,
Willingham stated, “FCA’s Standards of Conduct applies (sic) to all FCA employees. In order to
intelligently resolve or process future grievances, the Union requests this data, respectfully
(what’s in the employment jackets of salary workers who were disciplined for said SOC
violations?).”16 (GC Exh. 9; R. Exh. 6.) 35
Weber responded to Willingham’s April 24 email on May 3, nine days later and sixteen days
after Willingham’s initial request for information. (GC Exh. 9; R. Exh. 6.) Weber indicated that
Respondent was still collecting the data regarding Newkirt’s taxi pulls and would provide it
when they had it completed. (GC Exh. 9; R. Exh. 6.) Regarding the taxi pulls for Newkirt’s 40
shift, Weber stated that, “We need more time to investigate this and will update you.” (GC Exh.
9; R. Exh. 6.) Weber asserted that Respondent did not believe that the Union had established the
relevance of the request for production numbers. (GC Exh. 9; R. Exh. 6.) Regarding the request
for information concerning the discipline of non-bargaining unit employees, Weber said, “We do

16 Respondent conceded that FCA’s SOC apply to all FCA employees and does not distinguish
between unit and non-unit employees. (Tr. 223-225.)
JD–86–19
7
not see that you’ve established the relevance of data for non-bargaining unit employees. Ms.
Newkirt was disciplined pursuant to a collective bargaining agreement that does not apply to
non-bargaining unit employees, by different supervisors, under different working conditions.”
(GC Exh. 9; R. Exh. 6.) Respondent did not specifically respond to the request for discipline
served by all employees for SOC violations. (GC Exh. 9; R. Exh. 6; Tr. 89.) 5
Willingham responded to Weber’s email a little over an hour later. (GC Exh. 9; R. Exh. 7.)
Willingham asked Weber to supply the taxi pull information by May 7. (GC Exh. 9; R. Exh. 7.)
He again asked Weber for the production information and asked that Weber provide it by May 7.
(GC Exh. 9; R. Exh. 7.) Regarding the information concerning non-bargaining unit employees, 10
Willingham stated, “Discipline was imposed due to an FCA standard of conduct violation. The
policies of the company are to be enforceable to all employees; salary employees included.
Please supply information requested by 5/7/18.” (GC Exh. 9; R. Exh. 7.)
On May 8, Willingham received an email from Chris Lewis, a business unit leader, regarding 15
the request for taxi pull information. (GC Exh. 9; R. Exh. 8; Tr. 92, 195.) Lewis stated that,
“[I]n attempting to retrieve the requested data, we found that we can only go back 7 days. We
are seeing if there is any way to recover this data from IT or CHQ. If we find that we can, we
will provide it” (GC Exh. 9; R. Exh. 8.) On May 14, Lewis provided 2 days of taxi pull data for
Newkirt to Willingham. (GC Exh. 9; R. Exh. 9; Tr. 94.) 20
On May 14, Willingham had a conversation with Weber in his office. (Tr. 96.) Willingham
told Weber that he still wanted information for salaried employees disciplined for SOC
violations. (Tr. 96.) Weber stated that the information was not stored electronically but was
instead stored in employee files. (Tr. 96.) Weber said it would take time to get the information. 25
(Tr. 96.) Weber then said that Respondent’s corporate legal department advised him not to
provide this information. (Tr. 96.) Weber stated that he would provide the taxi pull information
for Newkirt and the second shift if it could be recovered. (Tr. 96.) He also agreed to provide the
production numbers for two weeks.17 (Tr. 98.)
30
Sometime later, Willingham had another conversation with Weber regarding this information
request. (Tr. 98.) Willingham again requested the outstanding information and Weber gave the
same responses as he had in the previous meeting. (Tr. 99.)
Jamison ultimately settled Newkirt’s grievances with Respondent at Step 3. (GC Exh. 17; R. 35
Exh. 10; Tr. 155-156.) Newkirt was given backpay, but the discipline remained on her record.
(GC Exh. 17; Tr. 156.) Newkirt’s grievances were marked as “WWP” on September 26.18 (R.
Exhs. 10, 11, 12.) Willingham was not present for the meetings at which Newkirt’s grievances
were resolved. (Tr. 205-206.)
40

17 Weber was not asked about this meeting and, as such, Willingham’s testimony on this point stands
uncontroverted.
18 Newkirt’s harassment grievance was withdrawn when her disciplinary grievance was settled. (GC
Exh. 17; R. Exhs. 11, 12.) Also, although the grievances are marked WWP as of September 25, the
grievance meeting minutes reflect that the meeting took place on September 26. (R. Exh. 10, 11, 12.) I
do not find the difference in the date material.
JD–86–19
8
On October 9, Weber sent an email to Jamison regarding the request for information related
to Newkirt’s grievance. (R. Exh. 25.) Weber mentioned that some information requested by the
Union that Respondent did not find relevant had never been provided to the Union. (R. Exh. 25.)
As the grievance had been settled and withdrawn, Weber wanted to confirm that the Union was
no longer seeking the information. (R. Exh. 25.) On October 12, Jamison responded that he 5
assumed that Willingham still wanted the information if it was never provided. (R. Exh. 25.)
Weber replied that there was no arguable relevance to the outstanding information as the
grievance was resolved. (R. Exh. 25.) Weber and Jamison never met to discuss the outstanding
information requests. (Tr. 204.)
10
On January 10, 2019, Weber sent an email to Willingham. (R. Exh. 20.) Weber asked
Willingham what information the Union still required, as the underlying grievances had been
resolved. (R. Exh. 20.) Willingham replied, advising Weber to review the original requests for
information and provide any information that had not yet been provided. (R. Exh. 20.) Weber
replied and again stated that all underlying grievances had been resolved. (R. Exh. 20.) Weber 15
again asked Willingham to identify what information was still needed. (R. Exh. 20.)
Willingham replied, “We need the company to stop denying requested information. It is a
violation of the NLRA.” (R. Exh. 20.)
E. June 26 Information Request20
On June 25, Willingham attended an investigative meeting with unit employee Chris Wilson.
(Tr. 107.) Human Resources Generalist Joanna Carr was also present for Wilson’s interview.19
(Tr. 108.) Carr asked Wilson questions about an absence taken pursuant to the Family Medical
Leave Act (FMLA). (Tr. 110.) After the question and answer session between Carr and Wilson, 25
everyone was given a copy of Wilson’s statement to review. (Tr. 110.) Wilson then signed and
dated the form, as did Willingham and Carr. (Tr. 107, 110.)
As was his practice, Willingham asked for a copy of Wilson’s statement at the conclusion of
the session. (Tr. 110.) Carr advised Willingham that Daragon had told her not to provide him 30
with a copy. (Tr. 110, 243.) Willingham testified that he needed a copy of the statement because
the maters discussed could have led to discipline and the Union might have had to file a
grievance on Wilson’s behalf. (Tr. 111.)
Daragon sent Willingham an email regarding his request for Weber’s statement on June 26. 35
(GC Exh. 10; R. Exh. 18.) Daragon stated
In response to your verbal request for Chris Wilson’s statement, we have
evaluated the specific circumstances present here, and concluded that releasing
the statement to the Union while the investigation is still open raises 40
confidentiality concerns in that disclosure poses a risk to the integrity of the
investigation. The Company is willing to bargain an accommodation with the
Union that satisfies its confidentiality concerns. Accordingly, the Company
proposes disclosing the statement to the Union upon the conclusion of the
investigation.45

19 Carr did not testify at the hearing.
JD–86–19
9
(GC Exh. 10; R. Exh. 18.) The Union did not make a counteroffer to Respondent’s proposal and
the parties never met or bargained over a proposed accommodation. (Tr. 246.)
Later that same day, Willingham sent an email to Daragon. (GC Exh. 10.) Willingham 5
asked Daragon to articulate Respondent’s confidentiality concern with providing Wilson’s
statement. (GC Exh. 10; R. Exh. 18.) Eliza Lanway, Respondent’s labor relations
representative, responded to Willingham’s email. (GC Exh. 10.) Lanway stated
. . . We have evaluated your request, and, as you have been previously informed, 10
this is an ongoing investigation. As such, your request raises confidentiality
concerns with the Company with regard to the integrity of the evidence and the
willingness of potential witnesses to cooperate. The Company is willing to
bargain an accommodation with the Union regarding disclosure of the information
that prompted the investigation, and proposes that this be disclosed to the Union 15
upon completion of the investigation at the international level.
(GC Exh. 10.) Lanway did not mention that Weber was under investigation for alleged fraud in
her email. (Tr. 262.)
20
Willingham sent a second email to Daragon on June 27, asking what was confidential about
the interview that would prevent him from obtaining a copy of the statement at that time. (GC
Exh. 10; R. Exh. 18.) Willingham also stated that the failure to disclose Wilson’s statement was
a change in Respondent’s practice. (GC Exh. 10; R. Exh. 18.) Willingham asked Daragon to
respond by June 29. (GC Exh. 10; R. Exh. 18.) Daragon did not respond. (Tr. 113, 244.)25
Daragon testified that Respondent’s main confidentiality concern at that time was that
Wilson’s statement was not complete. (Tr. 244.) Wilson was, in fact, interviewed again on July
16 and asked different questions. (Tr. 139, 244.) Daragon also believed that the Union might
share Wilson’s statement with other employees, which would severely compromise the integrity 30
of Respondent’s investigation. (Tr. 245.)
Weber replied to Willingham’s email on June 27. (GC Exh. 10.) Weber stated that
Respondent’s confidentiality concern was that disclosure of the statement while the matter was
still under investigation posed a risk to the integrity of the investigation. (GC Exh. 10.) 35
Willingham responded to Weber stating
Just saying you have trust issues is different from explaining why you have trust
issues. I want to understand why you have trust issues. I want to understand why
the company has these confidentiality concerns. The reasoning behind said 40
concerns may inspire me to change my position on requesting the information. So
please, enlighten me. Who will disclose what? Who else needs to be
investigated? Any relevant details are welcome. No[t] just the generic response
that has been given by the company repeatedly.
45
(GC Exh. 10.)
JD–86–19
10
Wilson’s FMLA interview statement was provided to Willingham on November 2, attached
to an email from Weber. (GC Exh. 10.) Wilson’s statement of June 25 and a follow-up
statement of July 16 were both attached to the email. (GC Exh. 10.)
Respondent had provided confidential witness statements of employees to the Union in the 5
past. (GC Exh. 11; Tr. 117, 254.) The Union provided copies of statements taken from two
other employees on November 21, 2017, and March 28 in support of this assertion. (GC Exh.
11, 254-256.) However, neither of these prior statements was connected to a fraud investigation.
(Tr. 254-256.) Willingham testified that prior to November 21, 2017, he had never been denied
copies of employee statements. (Tr. 124.) Respondent provided the Union with copies of two 10
employee interview statements concerning FMLA fraud on the same day as they were given.
(GC Exh. 10; Tr. 139-140.)
DISCUSSION AND ANALYSIS
15
A. Witness Credibility
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the 20
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to
believe some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. Some of 25
my credibility findings are incorporated into the findings of fact set forth above.
I found Willingham to be a credible witness. He appeared calm and forthright while
testifying. His testimony did not waver on cross-examination. Willingham admitted difficult
points when pressed on cross-examination. For example, although he initially did not 30
characterize the investigation of Wilson as fraud examination, he was willing to concede that he
later learned that the investigation was for fraud when Respondent’s counsel directed him to an
exhibit. Overall, I found Willingham’s testimony to be worthy of belief.
I found also Jamison’s brief testimony credible. Jamison’s voice wavered and he appeared 35
very nervous while testifying. However, his testimony regarding Respondent’s failure to provide
team member interview statements was corroborated by Willingham, Daragon, and Weber. His
testimony did not falter under cross-examination. Therefore, I credit Jamison’s testimony.
I found Weber to be a somewhat credible witness. For example, Weber contradicted himself 40
when questioned by Respondent’s counsel
Q. After May 14 did you ever tell Mr. Willingham or anyone else from the
Union that there was any additional responsive taxi pull data that might exist?
45
A. Yes.
JD–86–19
11
Q. You did tell him that? After May 14?
A. No.
Q. Okay.5
A. No, I did not.
(Tr. 198.) Due to Weber’s vacillation on this point, I instead credit Willingham’s testimony
regarding his conversations with Weber regarding the taxi pull information.10
Furthermore, I found Weber’s explanation regarding why he did not initially provide the
team member interview statements to the Union unsatisfactory. As found above, Weber served
on the JTLSC and received the Union’s information request for the statements from Daragon.
The Union specifically requested, “[A]ll team member interview forms that pertained to [Watts’] 15
removal as team leader.” (GC Exh. 6.) Weber would have known how many team members
were interviewed concerning Watts’ removal as team leader. Weber testified that he did not
believe that the Union wanted more than the two interview statements required as a minimum for
team leader removal. (Tr. 211.) This testimony is directly contradicted by Willingham’s email.
Therefore, I credit Weber’s testimony only where it is inherently plausible, uncontradicted, or 20
supported by more credible testimony or evidence.
I found Daragon to be credible witness. He appeared steady and relaxed while testifying.
His testimony was brief and did not waver on cross-examination. He readily admitted under
cross-examination that he did not respond to two of Willingham’s emails. (Tr. 250-251.) 25
Therefore, I have credited Daragon’s testimony.
Finally, I found Lanway’s testimony credible. Her testimony seemed certain and did not
waver under cross-examination. Much of her very brief testimony concerned interview
statements that were not part of the General Counsel’s complaint. Her testimony regarding 30
Respondent’s confidentiality concerns over Wilson’s interview statement were corroborated by
an email she sent Willingham. As such, I have credited Lanway’s testimony.
Several witnesses testified about a meeting or meetings that took place between the Union
and Daragon and Weber in May. Jamison testified that he engaged in a single meeting with 35
Jackson, Daragon and Weber, in which he asked why additional team member statements
pertaining to Watt’s removal as a team leader were not provided. (Tr. 150.) Willingham
testified that he had a single meeting with Daragon and Weber in which Daragon told Weber to
provide the additional team member interview forms. Daragon and Weber testified to a single
meeting with Willingham and one or two other Union officials in which the Union asked for 40
additional team member interview forms and Daragon told Weber to provide them. I have found
that in May, in a single meeting, the Union communicated its need for additional team member
interview forms, Daragon and Weber indicated that the forms had not been provided by mistake,
Daragon told Weber to provide the interview forms, and Weber provided the forms. I find it
very unlikely that Daragon would twice, in separate meetings, order Weber to provide these 45
forms to the Union. Both Daragon and Weber testified that these events transpired during a
single meeting. I further find that Willingham’s and Jamison’s testimony diverges regarding
JD–86–19
12
what they believed was two meetings. Willingham testified that Jamison told him about the
missing interview forms, prompting him to meet with Daragon. Jamison, however, never
testified that he told Willingham about the missing forms. Given the uncertainty of the General
Counsel’s witnesses regarding these alleged separate meetings, I instead find that it is more
likely that there was a single meeting at which Daragon advised Weber to provide the additional 5
statements.
B. Respondent’s Motion to Dismiss Paragraphs 7(a) and (b) of the Complaint
At the hearing, the General Counsel moved to amend the complaint. (GC Exh. 1(l); Tr. 6-7.) 10
I allowed the amendment at the hearing over the objection of Respondent.20 (Tr. 8-9.)
Respondent denied the allegations contained in the amendment and raised a timeliness defense
under Section 10(b) of the Act.21 (Tr. 7-8.)
As correctly pointed out by Respondent, the allegations contained in paragraph 7(a) and (b) 15
of the complaint are not contained in either of the underlying charges. However, I find that these
allegations were properly before me. Additionally, I find that the General Counsel’s amendment
to the complaint was proper.
The Board requires that complaint allegations be factually related to the allegations in the 20
underlying charge. Nickels Bakery of Indiana, 296 NLRB 927, 928 (1989). In considering
whether a charge supports an allegation in the complaint, the Board requires that the complaint
allegation be related to and arise out of the same situation as the conduct alleged to be unlawful
in the underlying charge, although it need not be limited to the specific violations alleged in the
charge. 296 NLRB at 927. In NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959), the Supreme 25
Court held that a complaint alleging violations not specifically alleged in the charge is proper if
the matters asserted in the complaint “are related to those alleged in the charge and . . . grow out
of them while the proceeding is pending before the Board.” 296 NLRB at 927.
In deciding whether complaint amendments are closely related to allegations made in the 30
underlying charge, the Board considers the factors set forth in Redd-I, Inc., 290 NLRB 1155
(1988). First, the Board considers whether the otherwise untimely allegations involve the same
legal theory as the allegations in the timely-filed charge. Id. Second, the Board considers
whether the otherwise untimely allegations arise from the same factual circumstances or
sequence of events as the timely-filed charge. Id. Finally, the Board may examine whether a 35
respondent would raise similar defenses to both allegations.22 Id.

20 Par. 7(a) and (b) of the complaint allege that Respondent violated the Act when it failed and refused
to provide the Union with copies of “taxi pulls” for employee Kelli Newkirt and for the entire second shift
taxi team for the last weeks.
21 Respondent did not object to certain other amendments to the complaint, including changing the
spelling of a unit employee’s name, adding an additional section of Respondent’s SOC to one of the
information requests, and addressing some grammar issues.
22 Although Redd-I involved a complaint amendment, the precedent relied upon in Redd-I applies a
similar closely related requirement to both initial complaints and amended complaints. See Nickels
Bakery of Indiana, 296 NLRB at 928, citing NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952),
as discussed in Redd-I, Inc. 290 NLRB at 116.
JD–86–19
13
The charge in Case 07-CA-219895 alleges that alleges that Respondent violated the Act by
failing and refusing to bargain in good faith with the Union by failing to furnish certain
information. (GC Exh. 1(a).) Thus, the legal theory of the complaint allegations is the same as
those in the charge: a violation of Section 8(a)(5) and (1) of the Act. (GC Exh. 1(a), (g).) 5
In addition, the complaint allegations arise from the same factual circumstances and
sequence of events as those in the amended charge. In a list attached to the charge, the Union
claimed that it requested, “Production data, [s]alary employees discipline data” from Weber on
April 17. (GC Exh. 1(a).) Although the request referenced in the charge does not specifically 10
list taxi pull information, the Union requested the taxi pull information in the same email in
which it requested production data and discipline information for salaried employees. (GC Exh.
9.) The alleged violations all arose as a result of a single email. Thus, I find that complaint
allegations involve the same legal theory and factual circumstances as those in the amended
charge. 15
As the allegations in the charge and complaint involve violations of Section 8(a)(5) and (1)
of the Act, Respondent would be expected to raise similar defenses to them. Although the
requests are for different information, they were made in the course of a single email. Therefore,
I find that the allegations in the complaint that were not asserted in the underlying amended 20
charge are closely related to the allegations made in the complaint. As such, the General
Counsel properly moved to amend the complaint and the amendment was proper.
C. Respondent Violated the Act by Failing and Refusing to Provide Requested
Information to the Union25
In its information requests, the Union sought information regarding: team member interviews
related to the removal of Robert Watts, Jr., as a team leader; taxi pulls for Kelli Newkirt for the
previous two weeks; taxi pulls of the entire taxi team on second shift for the previous two weeks;
production numbers each day of full production for the previous two weeks; a list of all 30
individuals disciplined for violations of Standard of Conduct (SOC) sections #3, #5, #6, #11, and
#14 in the past two years for salaried employees; a list of all disciplines served for SOC
violations of sections #3, #5, #6, and #11 in the past two years for salaried employees, and;
employee Chris Wilson’s FMLA interview statement (GC Exh. 1(g), 1(l).) The General Counsel
alleges that Respondent unreasonably delayed in providing the information regarding the Watts 35
interviews and Wilson’s statement. (GC Exh. 1(g), 1(l).) The General Counsel further alleges
that Respondent failed and refused to provide the information concerning the taxi pulls,
production numbers, and SOC violations by and discipline of salaried employees.
In dealing with a certified or recognized collective-bargaining representative, one of the 40
things which employers must do, on request, is to provide information that is needed by a
bargaining representative for the proper performance of its duties. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). Following an appropriate request, and limited only by considerations of
relevancy, the obligation arises from the operation of the Act itself. Ellsworth Sheet Metal, 224
NLRB 1506 (1976). Information concerning the wages, hours, and terms and conditions of 45
employment of bargaining unit employees is presumptively relevant and must be furnished upon
request. North Star Steel Co., 347 NLRB 1364 (2006); Bryant & Stratton Business Institute, 323
JD–86–19
14
NLRB 410 (1997). Information sought by a union relating to the union's investigation of a
potential grievance, or to the policing and/or proper application of the terms of a collective-
bargaining agreement, relates to employees in the bargaining unit and is presumptively relevant.
Yeshiva University, 315 NLRB 1245, 1248 (1994). It is the employer’s burden to rebut the
presumption. A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011); Southern California 5
Gas Co., 344 NLRB 231, 235 (2005); Miller Processing Services, 308 NLRB 929 (1992).
The Newkirt taxi pull information, taxi pull information for the second shift, production
numbers for the Dundee Engine Plant, team member interviews concerning Watts, and Wilson’s
statement are all presumptively relevant. The Union sought the information regarding Newkirt 10
and other unit employees on her shift in order to process her disciplinary grievance. The Union
sought production numbers for the plant because, in Willingham’s opinion, if production
numbers were being met, Newkirt’s alleged lack of effort should not matter. Similarly, the
Union sought the information regarding Watts in order to process his grievances concerning his
removal as a team leader. Wilson’s statement was sought because he might have been subject to 15
discipline and the Union could have had to file a grievance on his behalf. As such, this
information was all presumptively relevant.
Respondent has not rebutted the presumption that this information is presumptively relevant.
Respondent conceded that the information sought regarding Watts’ removal as a team leader was 20
relevant. Respondent did not argue that the taxi pull information for Newkirt and her shift, or
Wilson’s FMLA statement, were not relevant. All of this information relates directly to unit
employees and the information regarding Newkirt’s shift and production numbers relates directly
to the Union’s processing of her grievance. Therefore, Respondent had a duty to provide this
information. 25
Absent evidence of justification, an unreasonable delay in furnishing relevant information is
as much a violation of Section 8(a) (5) of the Act as a refusal to furnish the information at all.
PAE Aviation and Technical Services, LLC., 366 NLRB No. 95, slip op. at 3 (2018). It is an
employer's duty to furnish relevant information as promptly as possible, given the circumstances, 30
as a union is entitled to the information at the time the information request is made. Id. In
determining whether a party has failed to produce information in a timely manner, “the Board
considers a variety of factors, including the nature of the information sought (including whether
the requested information is time sensitive); the difficulty in obtaining it (including the
complexity and extent of the requested information); the amount of time the party takes to 35
provide it; the reasons for the delay in providing it; and whether the party contemporaneously
communicates these reasons to the requesting party.” General Drivers, Warehousemen &
Helpers Local Union No. 89, 365 NLRB No. 115, slip op. at 2 (2017). The analysis is an
objective one, focusing not on whether the employer delayed in bad faith, but rather on whether
it supplied the requested information in a reasonable time. Management & Training Corp., 366 40
NLRB No. 134, slip op. at 3 (2018).
The Union requested the team member interviews concerning Watts’ removal as a team
leader on February 20. Two statements were provided to the Union on March 2, 10 days after
the request. Four additional statements in Respondent’s possession were not disclosed until May 45
24, over three months after the Union’s request. Although the team member interviews were not
time sensitive, they also were not difficult to obtain, and consisted of only a few pages. The
JD–86–19
15
Board has found delays in providing information of less than three months or less to be
unreasonable and violative of the Act. Dodge of Naperville Jeep/Dodge, 357 NLRB 2252, 2253
fn. 5 (2012) (2 months); Woodland Clinic, 331 NLRB 735, 737 (2000) (7 weeks); Bundy Corp.,
292 NLRB 671, 672 (1989) (6 weeks). Given the Union’s specific request for the statements,
Weber’s knowledge that the statements existed, and Weber’s failure to provide the statements for 5
over three months, I find Respondent’s delay in providing the team member interview forms
concerning Watts was unreasonable and violated the Act.
I further find Respondent’s delay in providing two weeks of taxi pull data for Newkirt and
her shift was unreasonable. The Union requested this information in an email on April 17. 10
Weber did not respond to this request until April 23, when he questioned the relevance of the
information. Weber next replied to this request on May 3, sixteen days after the Union’s initial
request. In his May 3 email, Weber indicated that he was gathering Newkirt’s taxi pull data and
would provide it later. Weber further indicated that Respondent was still investigating the taxi
pulls for Newkirt’s shift. On May 8, twenty-one days after the Union’s information request, 15
Lewis provided the Union with two days of taxi pull data for Newkirt and stating that
Respondent had learned that it could only go back seven days to retrieve taxi pull data.
Clearly, Weber did not begin gathering the taxi pull data immediately after the Union’s
request. Had he done so, he would have learned that the data was only able to be retrieved for 20
the preceding seven days. Thus, the information was time-sensitive. Respondent provided only
two days of taxi pull data for Newkirt, and no data related to others on her shift, three weeks
after the initial request. This data could have shown how Newkirt’s performance compared to
that of other employees. This data further could have helped the Union determine how to
proceed with Newkirt’s grievance. Given Respondent’s inexplicable delay in beginning to 25
gather the taxi pull data, resulting in the information becoming unavailable, I find that
Respondent violated the Act by failing to provide the taxi pull data for Newkirt and her shift over
a two-week period.
The Union sought plant production numbers in order to process Newkirt’s grievance. 30
Newkirt was disciplined for an alleged lack of effort in performing her job. Respondent has
never provided this information to the Union. Respondent argues that this information is not
presumptively relevant, and that the Union has not established its relevance. (R. Brf. p. 12.) I
find that this information is presumptively relevant in that is was sought for the purpose of
processing a grievance on behalf of a bargaining unit member. However, if this information is 35
not found to be presumptively relevant, I find that the Union as established its relevance.
Processing grievances is clearly a responsibility of a union, and an employer must provide
information requested by the union for the purposes of handling grievances. TRW, Inc., 202
NLRB 729 (1973). The Board may order production of information relevant to a dispute if there
is some probability that it would be of use to the union in carrying out its statutory duties, 40
including the evaluation of grievances. NLRB v. Safeway Stores, 622 F.2d 425, 430 (9th Cir.
1980), cert. denied, 450 US 913 (1981). Arguably, the plant production data could have assisted
the Union in defending Newkirt’s grievance, as it would have shown the effect of her alleged
lack of effort on production. Therefore, I find that Respondent’s refusal to provide production
data for a two-week period, as requested by the Union, violated the Act. 45
JD–86–19
16
Regarding the FMLA interview statement of Wilson, Respondent asserts that the it was
confidential and exempt from disclosure. In American Baptist Homes of the West, 362 NLRB
1135 (2015), enfd. in relevant part 858 F.3d 612 (D.C. Cir. 2017), the Board stated that in future
cases in which an employer argues that it has a confidentiality interest in protecting witness
statements from disclosure, it shall apply the balancing test set forth in Detroit Edison v. NLRB, 5
440 U.S. 301 (1979). Thus, the Board balances the union’s need for the relevant information
against any legitimate and substantial confidentiality interests established by the employer. 362
NLRB at 1137. Establishing a legitimate and substantial confidentiality interest requires more
than a generalized desire to protect the integrity of employment investigations. Id. Instead, an
employer must determine whether any given investigation witnesses need protection, evidence is 10
in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to
prevent a coverup. Id. citing Hyundai America Shipping Agency, 357 NLRB 860 (2011), enfd. in
relevant part 805 F.3d 309, 314 (D.C. Cir. 2015). If such a showing is made, the Board weighs
the party’s interest in confidentiality against the requester’s need for the information. American
Baptist Homes of the West, 362 NLRB at 1137. 15
In this case, I find that Respondent asserted a valid confidentiality concern initially regarding
Wilson’s statement. In his initial interview, Wilson did not answer all of Carr’s questions. He
was subsequently re-interviewed and asked different questions. It stands to reason that
Respondent was concerned that Wilson could have reviewed his statement to prepare for further 20
questioning. However, after Wilson’s final interview on July 16, Respondent would no longer
have any reason to withhold his interview statements. In fact, Respondent provided the Union
with copies of other employee interview statements concerning FMLA fraud on the same day as
they were given. Respondent offers no explanation for providing the other two FMLA
statements, but not Wilson’s statement, to the Union. Thus, I find that Respondent’s 25
confidentiality concern should have been alleviated as of July 16. In any event, despite
Respondent’s need for confidentiality during its ongoing investigation, the Union had an equally
compelling need for the requested information: to prepare for potential discipline and the filing
of a grievance.
30
Even if the Board determines that the confidentiality interest outweighs the requester’s need,
the party asserting confidentiality may not simply refuse to provide the information, but must
seek an accommodation that would allow the requester to obtain the information it needs while
protecting the party’s interest in confidentiality. American Baptist Homes of the West, 362
NLRB at 1137. The burden of formulating a reasonable accommodation is on the employer, the 35
union need not propose a precise alternative to providing the requested information unedited,
Borgess Medical Center, 342 NLRB 1105, 1106 (2004). I find that Respondent did not satisfy
its duty to come forward with an appropriate accommodation in this case. Willingham, who
attended Wilson’s interview with human resources on June 25, requested a copy of Wilson’s
statement at the conclusion of the interview. In the past, he had always been provided copies of 40
such statements. However, on this occasion, Willingham was told by Carr, who was acting on
instructions from Daragon, that Respondent would not provide a copy of the statement. After
asserting that Wilson’s statement was confidential, Daragon proposed, as an accommodation,
“disclosing the statement upon the conclusion of the investigation.” (GC Exh. 10.) Respondent
did not offer to provide the statement in a redacted form or for a limited purpose, such as subject 45
to a confidentiality agreement. Instead, Respondent only offered to delay the provision of
Wilson’s statement until the conclusion of its investigation. I do not find this reasonable, as it is
JD–86–19
17
not really an accommodation at all, but instead a flat refusal to provide the statement.
Furthermore, the Union’s failure to offer a counterproposal is of no moment. The burden of
formulating a reasonable accommodation is on the employer and the union need not propose a
precise alternative to providing the requested information unedited. United States Testing Co. v
NLRB, 160 F.3d 14, 21 (D.C. Cir. 1998), citing Tritac Corp., 286 NLRB 522, 522 (1987).5
Respondent eventually provided Wilson’s statement to the Union on November 2, over four
months after the Union requested it. Curiously, Respondent provided statements of two other
employees concerning alleged FMLA fraud to the Union on the same day as they were given,
just a few days before Wilson’s interview. Respondent offered no evidence as to why, after 10
Wilson gave his final statement on July 16, it did not provide the statement or offer a reasonable
accommodation. Wilson’s statement was a single document and no evidence was asserted that it
would have been difficult to locate or retrieve the statement. Therefore, I find that Respondent's
delay constituted a violation of Section 8(a)(1) and (5) of the Act. 8 See, e.g. U.S. Postal Service,
308 NLRB 547, 551 (1992) (Four-week unexplained delay unlawful where information was not 15
shown to be difficult to retrieve).
The Union further sought information regarding salaried, non-unit employees’ violations of
Respondent’s standards of conduct (SOC) and information regarding discipline of salaried, non-
unit employees for violations of Respondent’s SOC. The remaining information sought by the 20
Union in this case is not presumptively relevant. When a union seeks information concerning
employees outside of the bargaining unit, there is no presumption of relevance and the union has
the burden to show relevance in such circumstances. E.I. DuPont de Nemours and Co., 744 F.2d
536, 538 (6th Cir. 1984). Processing grievances is a responsibility of a union, and an employer
must provide information requested by the union for the purposes of handling grievances. TRW, 25
Inc., 202 NLRB 729 (1973). The legal standard concerning just what information must be
produced is whether or not there is “a probability that such data is relevant and will be of use to
the union in fulfilling its statutory duties and responsibilities as the employees’ exclusive
bargaining representative.” Bohemia, Inc., 272 NLRB 1128 (1984). The Board uses a broad,
discovery-type standard in determining relevance in information requests and potential or 30
probable relevance is sufficient to give rise to an employer’s obligation to provide information.
Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). If a union’s information request is
ambiguous or concerns non-unit employees, this does not excuse an employer’s blanket refusal
to comply. Keauhou Beach Hotel, 298 NLRB 702, 702 (1990).
35
Inasmuch as the Union was investigating Respondent's consistency in enforcing its SOC and
disciplinary policies, this information was relevant and necessary to the Union's role in
representing its members. Information regarding a misconduct investigation, even of non-unit
employees, is relevant to establishing whether there has been disparate treatment of employees.
NTN Bower Corp., 356 NLRB 1072, 1139 (2011). The Board elaborated upon the duty of the 40
employer to furnish information in Pfizer, Inc., 268 NLRB 916, 918, (1984), enfd. 763 F.2d 887
(7th Cir. 1985), where it explained that certain matters relating to the unit go to the core of the
employer employee relationship and are presumptively relevant: these include “wage rates, job
descriptions, and other information pertaining to employees within the bargaining unit.”
However, “[w]here the request is for information concerning employees outside the bargaining 45
unit, the union must show that the information is relevant.” Id. The standard for relevancy is a
liberal discovery-type standard. 268 NLRB at 918, citing Loral Electronic Systems, 253 NLRB
JD–86–19
18
851, 853 (1980). In Pfizer, the union requested certain information about disciplinary action
issued to all other non-unit employees in order to present a grievance concerning disparate
application of discipline to a unit employee. The Board held that the General Counsel had
shown the relevance of the requested information: the records would assist the union either in
deciding whether to proceed to arbitration, or in the arbitration proceeding. Pfizer, supra, at 919. 5
Similarly, in the instant case, the information regarding the non-unit employees is relevant
because it could assist the Union in proving whether Newkirt was treated disparately.
After the Union demonstrated the relevancy of the requested information, the burden shifted
to Respondent to establish that the information was not relevant, did not exist, or for some other 10
valid and acceptable reason could be furnished to the requesting party. Samaritan Medical
Center, 319 NLRB 392, 398 (1995), citing Somerville Mills, 308 NLRB 425 (1992) and Postal
Service, 276 NLRB 1282 (1985). Respondent made no such showing. As such, I find that
Respondent’s failure to produce information regarding violations of its SOC by non-unit
employees and discipline of non-unit employees for violations of its SOC violated Section 15
8(a)(5) and (1) of the Act. Ultimately, Respondent has failed to elucidate a reason why it should
be excused from providing, or timely providing, the information requested by the Union on
February 20, April 17, and June 26. The Union’s requests were all relevant and necessary to its
role processing grievances for unit members.
20
D. Respondent’s Affirmative Defenses
Respondent raised eight affirmative defenses in its answer to the complaint. It is well
established that the burden of proof of proving an affirmative defense lies with the party
asserting it. Marydale Products, Company, Inc., 133 NLRB 1232 (1961) and Sage Development 25
Co., 301 NLRB 1173, 1189 (1991). I have already addressed Respondent’s defenses related to
confidentiality, the relevance of the requested information, and Respondent’s failure to provide
relevant information.
Respondent asserts that all relevant and responsive information has been provided to the 30
Union or no longer exists. An unreasonable delay in providing relevant information to a union is
as much a violation of the Act as an outright refusal to provide the information. Finn Industries,
Inc., 314 NLRB 556, 558 (1994). Regarding the information requested for Newkirt’s grievance,
Respondent did not reply to the Union’s request for information relating to Newkirt’s grievance
for almost a month. When it did, Respondent was only able to locate two days’ worth of taxi 35
pull information regarding Newkirt herself. Information regarding taxi pulls for other members
of Newkirt’s shift and regarding production numbers for Newkirt’s shift were never provided. In
this case, if Respondent would have timely responded to the Union’s request for taxi pull
information related to Newkirt’s grievance, the information would have been available.
Moreover, Respondent never provided the information. Thus, I find that Respondent’s delay in 40
JD–86–19
19
searching for and providing this information was a violation of the Act, which was not mooted
because it subsequently provided only some of the information. The rest of the taxi pull
information became unavailable by Respondent’s own failure to timely respond to the
information request.
Despite Respondent’s assertions to the contrary, the settlement of Newkirt’s grievance did
not moot its obligation to provide the requested information. In U.S. Postal Service, 332 NLRB
635 (2000) the Board held that an undue delay in providing information relevant to a grievance is
not rendered moot by the settlement of the grievance. In that case, the Board affirmed the
judge’s conclusion that the union's request for information was not mooted because in its request
the union expressly stated that it had reason to believe that management is treating supervisor(s)
differently than craft employees concerning attendance and unscheduled absences. 332 NLRB at
636. Thus, the Board found, this request was relevant to all bargaining unit members, and was
not limited to the grievant. Id.
Similarly, in this case, Willingham’s stated purpose for requesting the records was, “The
information I have requested has relevance to a grievance and its investigation. [The] Union
needs this information to bargain intelligently and or to adjust or resolve grievances.”
Willingham’s further requested information pertaining to salaried employees who had run afoul
of Respondent’s SOC and the punishments given to those salaried employees. Without
specifically stating that his request had to do with a problem of disparate treatment affecting the
larger unit, I find his request encompassed an issue of the larger bargaining unit by requesting
information pertaining to disparate treatment and referencing “grievances” (plural). Moreover,
in an email of April 24, Willingham stated that he needed the information because, “FCA’s
Standards of Conduct applies (sic) to all FCA employees. In order to intelligently resolve or
process future grievances, the Union requests this data, respectfully . . .” Thus, I find the U.S.
Postal Service case analogous from the facts presented here and find no merit in Respondent’s
mootness defense.
The case cited by Respondent in support of its mootness argument is distinguishable from the
instant case. See Borgess Medical Center, 342 NLRB 1105 (2004). In Borges Medical Center, a
union requested incident reports with respect to a grievance it filed on behalf of discharged
nurse. 342 NLRB at 1106. That grievance went to arbitration, the arbitrator issued a decision in
the employer’s favor, and no appeal was taken by the Union. Id. In that case, the union did not
assert that it needed the information for any other purpose. Thus, the Board declined to order the
Respondent to produce the information. Id. However, in this case, the Union sought information
regarding disparate treatment of unit employees and stated that it needed the information to
adjust or resolve grievances (plural). Furthermore, I note that the Board in Borgess Medical
Center found that a union dis not have the burden of showing an ongoing need for the
information, however, but instead that the remedy for a violation must consider the facts as they
exist at the time of the order. 342 NLRB at 1107. In this case, the Union still requires the
information to carry out its duties as the collective-bargaining representative of Respondent’s
employees to investigate possible unfair treatment of unit employees.
As Respondent’s duty to provide relevant requested information to the Union was not
mooted by the resolution of Newkirt’s grievance, I find that Respondent’s defense that it did not
fail to provide relevant information necessary to the Charging Party’s collective-bargaining
JD–86–19
20
duties fails. As I have found, the information requested by the Union remained relevant after the
settlement of Newkirt’s grievance because the Union tied its request to an issue of the larger
bargaining unit by requesting information regarding disparate treatment and stating that it needed
the information to resolve or adjust grievances (plural). Therefore, Respondent did not provide
all relevant information to the Union and its affirmative defense in this regard fails.
I do not accept Respondent’s defense that it merely made a mistake in not providing some of
the team member interviews concerning Watts’ removal as team leader. Respondent failed to
adduce credible evidence at the hearing that Weber’s failure to provide the team member
interview forms was a mistake. Weber knew how many team members were interviewed
regarding Watts’ removal because he attended the interviews. Thus, his failure to provide the
interview statements, despite a specific request for them, was not a mistake.
Finally, Respondent asserts that American Baptist Homes of the West, 362 NLRB 1135
(2015) should be overturned. (R. Brf. p. 19.) It is well settled that administrative law judges of
the National Labor Relations Board are bound to follow Board precedent which neither the
Board nor the Supreme Court has reversed, notwithstanding contrary decisions by courts of
appeals or district courts. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984); Pathmark Stores, Inc.,
342 NLRB 378 fn. 1 (2004). As such, I am bound to follow the Board’s holding in American
Baptist Homes of the West, and relevant cases cited therein.
In sum, I found no merit to any of Respondent’s affirmative defenses. Moreover, I have
found that the General Counsel has established that Respondent violated Section 8(a)(5) and (1)
of the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 723, International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to provide the Union with relevant information as requested on
February 20, 2018, April 17, 2018, and June 26, 2018, Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act.
4. The unfair labor practices committed by Respondent affect commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.
JD–86–19
21
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
ORDER
Respondent, FCA US LLC, Dundee, Michigan, and its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union, Local 723, International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America (UAW),
AFL-CIO, by unreasonably delaying, and failing and refusing, to furnish it with
requested information that is relevant and necessary to the performance of its function
as the exclusive collective-bargaining representative of Respondent’s employees in
the following appropriate bargaining unit:
All full-time and regular part-time production and maintenance
employees employed by Dundee Engine Plant (formerly known as
Global Engine Manufacturing Alliance) at its facility located in
Dundee, Michigan, but excluding office clerical employees, engineers,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing employees 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) Furnish the Union with the following information it requested on April 17, 2018: (1)
Copies of taxi pulls for unit employee Kelli Newkirt for the two weeks ending April
17, 2018; (2) Copies of taxi pulls for the entire taxi team on 2nd shift for the two
weeks ending April 17, 2018; (3) Production numbers for each day of full production
for the two weeks ending April 17, 2018; (4) A list of all non-bargaining unit
individuals disciplined for violations of Standards of Conduct (SOC) violations of
Sections #3, #5, #6, #11, and #14 in the past two years; and (5) A list of all disciplines
issued for SOC violations of Sections #3, #5, #6, and #11 in the past two years for all
non-bargaining unit employees. If any of this information does not exist, Respondent
shall inform the Union that no such documents exist and, if the documents previously
existed, the reasons why the documents no longer exist.

23 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 purposes.
JD–86–19
22
(b) Within 14 days after service by the Region, post at its facility in Dundee, Michigan,
copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the
Respondent at any time since February 20, 2018.
(c) Within 21 days after service by the Region, file with the Regional Director for Region
7 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. November 5, 2019
Melissa M. Olivero
Administrative Law Judge

24 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National 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.”
a• •/1/64/Ja
JD–86–19
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT, upon request, fail and refuse to bargain collectively and in good faith with Local
723, International Union, United Automobile, Aerospace and Agricultural Implement Workers
of America (UAW), AFL-CIO, (Union) as the designated servicing representative of the
exclusive collective-bargaining representative of employees in the following appropriate
bargaining unit:
All full-time and regular part-time production and maintenance employees
employed by Dundee Engine Plant (formerly known as Global Engine
Manufacturing Alliance) at its facility located in Dundee, Michigan, but excluding
office clerical employees, engineers, guards, and supervisors as defined in the Act
by refusing to provide, and unreasonably delaying in providing, the Union with requested
information that is relevant and necessary to its role as the designated servicing
representative of the exclusive collective-bargaining representative of unit employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of your rights guaranteed by Section 7 of the Act.
WE HAVE the provided the Union with team member interview forms it requested on February
20, 2018, and the FMLA interview statement of a unit employee it requested on June 26, 2018.
WE WILL furnish the Union with the following information it requested on April 17, 2018: (1)
Copies of taxi pulls for unit employee Kelli Newkirt for the two weeks ending April 17, 2018;
(2) Copies of taxi pulls for the entire taxi team on 2nd shift for the two weeks ending April 17,
2018; (3) Production numbers each day of full production for the two weeks ending April 17,
2018; (4) A list of all non-bargaining unit individuals disciplined for violations of Standards of
Conduct (SOC) violations of Sections #3, #5, #6, #11, and #14 in the past two years; and (5) A
list of all disciplines issued for SOC violations of Sections #3, #5, #6, and #11 in the past two
JD–86–19
years for all non-bargaining unit employees. If any of this information does not exist,
Respondent shall inform the Union that no such documents exist and, if the documents
previously existed, the reasons why the documents no longer exist.
FCA US LLC
(Employer)
Dated By
(Representative)
(Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out
more about your rights under the Act and how to file a charge or election petition, you may speak confidentially
to any agent with the Board’s Regional Office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 05-200, Detroit, MI 48226-2569
(313) 226–3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-219895 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER,
(313) 226–3244.