GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION 89 AFFILIATED WITH THE INTERNATIONAL BROTHERH

National Labor Relations Board - Board Decisions

Dec 15, 2017

365 NLRB No. 115 (N.L.R.B. 2017)

365 NLRB No. 115
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
General Drivers, Warehousemen & Helpers Local
Union No. 89 (Affiliated with the International
Brotherhood of Teamsters) and Jack Cooper
Holdings d/b/a Jack Cooper Transport Co. Case
09–CB–157269
December 15, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On February 6, 2017, Administrative Law Judge Don-
na N. Dawson issued the attached decision. The Re-
spondent Union filed exceptions and a supporting brief.
The General Counsel filed cross-exceptions, a supporting
brief, and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified and set
forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In his answering brief, the General Counsel requests that the Board
deny the Respondent’s exceptions because its supporting brief does not
individually reference any of the exceptions as required by Sec.
102.46(a)(2) of the Board’s Rules and Regulations, leaving the General
Counsel to guess as to the reasons for the Respondent’s exceptions.
Although the Respondent’s brief does not conform in all respects with
the Rules’ requirements, we find that it is not so deficient as to warrant
striking it and denying the Respondent’s exceptions. Furthermore, it
appears that the General Counsel was not prejudiced by the Respond-
ent’s failure to comply with that section since he filed an answering
brief addressing the issues sought to be raised by the exceptions and
brief. Accordingly, we deny the General Counsel’s request.
2 We have amended the judge’s Conclusions of Law to correct the
judge’s inadvertent reference to an 8(a)(5) and (1) violation, instead of
Sec. 8(b)(3) as alleged in the complaint, and to conform to the viola-
tions the judge found. We have similarly substituted Sec. 8(b)(3) for
Sec. 8(a)(5) and (1) elsewhere in the judge’s decision.
3 We shall modify the judge’s recommended Order to conform to
her unfair labor practice findings and to the Board’s standard remedial
language. We shall substitute a new notice to conform to the Order as
modified.
Chairman Miscimarra observes that no party urges the Board to de-
fer the unfair labor practice allegations in this case to the parties’ con-
tractual grievance and arbitration procedures. In a related case, Jack
Cooper Holdings Corp. d/b/a Jack Cooper Transport Co., 365 NLRB
1. We find no merit to the Respondent’s claim that
Raley’s Supermarkets & Drug Centers, 349 NLRB 26
(2007), precludes us from affirming the judge’s finding
that the Respondent unlawfully delayed furnishing in-
formation to the Company because the complaint did not
specifically allege such a violation. Raley’s did not stand
for the broad proposition that the Board is precluded
from finding an unlawful delay in providing information
unless the complaint contains a specific “delay” allega-
tion. Rather, Raley’s addressed a narrow subset of cases
where the requested information does not exist, and it
merely held that where a complaint alleges that a re-
spondent violated the Act by refusing to furnish specific
information that exists, the Board is precluded from
“convert[ing] this allegation into its opposite” and find-
ing that the respondent violated the Act by failing to
timely inform the requesting party that the information
does not exist. See id. at 28.
Nor, contrary to Respondent’s claim, does Raley’s pre-
clude us from affirming the judge’s additional finding
that the Respondent failed to timely notify the Company
that certain other requested information did not exist. As
the General Counsel notes in his answering brief, the
Board overruled Raley’s in Graymont PA, Inc., 364
NLRB No. 37, slip op. 1, 6–7 (2016), enf. denied on oth-
er grounds Nos. 16-1249 & 16-1288 (D.C. Cir. March 3,
2017), and held that it would apply the traditional Per-
gament4 test in deciding whether it may consider an unal-
leged failure to timely disclose that requested infor-
mation does not exist.
Applying that test, we conclude that the Respondent’s
due process rights are not violated by finding that it un-
lawfully failed to timely furnish certain requested infor-
mation and inform the Company that other requested
information did not exist. First, both findings were
closely connected to the complaint allegation that the
Respondent failed to furnish the Company with the in-
formation it had requested on March 13 and April 10,
2015. Thus, the alleged failure to furnish information

No. 163 (2017), Jack Cooper Holdings urged the Board to defer to the
parties’ contractual grievance and arbitration procedures complaint
allegations that it violated Sec. 8(a)(5) of the Act by refusing the Un-
ion’s requests to furnish certain information. In his dissent in Jack
Cooper Holdings, Chairman Miscimarra would have overruled the
Board’s per se rule against deferring information-request cases to nego-
tiated procedures and remanded that case to the judge to analyze
whether deferral there was appropriate. Because no party urges defer-
ral here, Chairman Miscimarra reaches the merits of the unfair labor
practice allegations.
4 See Pergament United Sales, Inc., 296 NLRB 333, 334 (1989)
(Board may find a violation even in the absence of a specified allega-
tion in the complaint if the issue is closely connected to the subject
matter of the complaint and has been fully litigated), enfd. 920 F.2d
130 (2d Cir. 1990).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and the unalleged failure to timely furnish other infor-
mation and inform the Company that certain information
did not exist involve the same evidentiary facts: namely,
the Company’s requests for information and the Re-
spondent’s response to those requests. They also present
the same ultimate issue: whether the Respondent’s re-
sponse satisfied its statutory obligation to bargain collec-
tively and in good faith with the Company. Indeed, the
Respondent demonstrated the close connection between
these issues by stating in its opening statement that it
“has no more documents in its possession to further satis-
fy any other requests,” and by eliciting testimony about
why it delayed providing certain information. See
Graymont PA, Inc., supra, at slip op. 7 (respondent’s
failure to timely disclose that requested information did
not exist was closely connected to complaint allegation
that respondent failed to timely furnish requested infor-
mation as they involve the same evidentiary facts and
present the same ultimate issue, and respondent’s open-
ing statement—to the effect that it had no responsive
information—demonstrated the close connection).
Second, the issues were fully litigated. The Respond-
ent did not object when the General Counsel elicited tes-
timony that it was not until April 27, 2015, that the Re-
spondent informed the Company that it had provided all
documents in its possession. The Respondent had the
opportunity to question the witness after he provided that
evidence. Further, the Respondent itself elicited testi-
mony to explain why it delayed furnishing other infor-
mation to the Company. See Casino Ready Mix, Inc. v.
NLRB, 321 F.3d 1190, 1200 (D.C. Cir. 2003) (respondent
had the opportunity to fully litigate the unalleged viola-
tion where it did not object to the evidence establishing
the unalleged violation and had the opportunity to cross-
examine the witness about the evidence); Park ‘N Fly,
Inc., 349 NLRB 132, 133 (2007) (same). Notably, the
judge stated—before the Respondent began presenting its
case—that the Respondent not only had a duty to provide
relevant information, it had a duty to provide it in a time-
ly manner, and that “[i]f you don’t have the information,
the law says that you say I don’t have the information . . .
if you don’t have [the requested documents], you say you
don’t have them, and you do it in a timely manner.
Okay? Again, that’s what this case is about” (emphasis
added). In these circumstances, any claim that the Re-
spondent would have altered the conduct of its case at the
hearing if only the General Counsel had included the
more specific allegations in the complaint is untenable.5

5 Chairman Miscimarra finds that a best practice would be to specif-
ically plead in a complaint, as appropriate, that a respondent violated
Sec. 8(b)(3) or Sec. 8(a)(5) of the Act by refusing to furnish requested
information, by unreasonably delaying in furnishing requested infor-
2. As for the merits of the judge’s findings that the
Respondent unlawfully delayed in responding to the in-
formation requests, we note that when faced with a re-
quest for relevant information, a party is required to
make a reasonable good faith effort to respond to the
request as promptly as the circumstances allow. West
Penn Power Co., 339 NLRB 585, 587 (2003), enfd. 394
F.3d 233 (4th Cir. 2005). In determining whether a party
has failed to furnish information in a timely manner, the
Board considers a variety of factors, including the nature
of the information sought (including whether the re-
quested 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 provide it; the reasons for the delay in providing
it; and whether the party contemporaneously communi-
cates these reasons to the requesting party. Id. at 587 &
fn. 6, 588 & fn. 9. See also Postal Service, 308 NLRB
547, 551 (1992); Valley Inventory Service, Inc., 295
NLRB 1163, 1166 (1989).
Applying these factors, we affirm the judge’s unlawful
delay findings. Here, the National Master Agreement
provides that parties shall respond to information re-
quests relating to work preservation grievances within 15
days, presumably because of the time-sensitive nature of
such matters. Not surprisingly, the record shows that the
Company asked the Respondent to furnish the requested
information within 15 days, just as the Respondent had
asked the Company to furnish the Respondent—within
15 days—information relating to the same grievance.
Given that the Respondent had told the Company that it
had done “quite a bit of research” on the matter prior to
the Company’s information requests, it is reasonable to
conclude that it would not have been difficult or time
consuming for the Respondent to retrieve and furnish the
information that did exist and to ascertain which request-
ed information did not exist and to so inform the Compa-

mation, or by failing to promptly inform the employer or the union, as
the case may be, that requested information does not exist.
Chairman Miscimarra further finds it unnecessary to pass on wheth-
er the majority in Graymont PA, 364 NLRB No. 37 (2016), correctly
overruled Raley’s Supermarkets & Drug Centers, 349 NLRB 26
(2007), to the extent that Raley’s Supermarkets precluded the Board
from considering an unalleged failure to timely disclose that requested
information does not exist even when the unalleged issue is closely
connected to the subject matter of the complaint and has been fully
litigated. Here, the Company specifically asked the Union to “identify
any information that is not available and provide an explanation as to
why said information is not available” (emphasis added). Accordingly,
the Respondent’s refusal to promptly inform the Company that certain
information did not exist constituted a failure to timely furnish request-
ed information. Consequently, the complaint’s failure to separately
allege an unlawful delay in apprising the Company that certain infor-
mation does not exist did not deprive the Respondent of due process.
GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 89 3
(AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS)
ny. The Respondent does not offer any explanation why
it took so long to raise its nonmeritorious claim that dis-
closure of witness names would subject them to retalia-
tion or its claim that it had furnished all documents in its
possession. See, e.g., Postal Service, 308 NLRB at 551
(4-week unexplained delay unlawful where information
was not shown to be difficult to retrieve).
Accordingly, we find that the Respondent violated
Section 8(b)(3) in failing to provide requested infor-
mation and delaying in providing responses to the Com-
pany’s information requests.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 4.
“4. By refusing to provide relevant information and de-
laying in providing responses to the Company’s March
13, 2015 requests for information and April 10 renewed
requests, the Union has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(b)(3) of the Act.”
ORDER
The Union, General Drivers, Warehousemen and
Helpers Local Union 89 (a/w The International Brother-
hood of Teamsters), its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Refusing to bargain with the Company by refusing
to furnish to the Company relevant requested infor-
mation.
(b) Refusing to bargain with the Company by unrea-
sonably delaying in providing responses to requests for
relevant information.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Company in a timely manner the in-
formation requested by the Company on March 13 and
April 10, 2015 (i.e., requests 4, 7, 9, 10, 13, 14, 15, and
17), except for the information requiring the Union to
provide admissions that they did not have any evidence
that the Company had diverted union work.
(b) Within 14 days after service by Region 9, post at
its business offices and meeting halls in Kansas City,
Missouri and Louisville, Kentucky, copies of the at-
tached notice marked “Appendix.”6 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent

6 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
and members 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 Union customarily communicates with its member
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.
(c) Within 14 days from the date of this order, sign
and return to the Regional Director for Region 9 suffi-
cient copies of the Notice for posting by the Company, if
willing, at all places where notices to employees are cus-
tomarily posted.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Union has taken to
comply.
Dated, Washington, D.C. December 15, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with Jack
Cooper Holdings d/b/a Jack Cooper Transport Co. by
refusing to furnish it with relevant requested information
or by unreasonably delaying in providing responses to
requests for relevant information.
WE WILL furnish to Jack Cooper Holdings d/b/a Jack
Cooper Transport Co. in a timely manner the information
it requested on March 13, 2015, and on April 10, 2015,
regarding requests 4, 7, 9, 10, 13, 14, 15, and 17 (except
for requests for admissions that we did not have any evi-
dence to support our grievance).
GENERAL DRIVERS, WAREHOUSEMEN AND
HELPERS LOCAL UNION 89 (A/W THE
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS)
The Board’s decision can be found at
www.nlrb.gov/case/09-CB-157269 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.
Patrice Tisdale, Esq. and Naima Clarke, Esq., for the Gen-
eral Counsel.
David O. Suetholz, Esq., for the Respondent.
Kenneth W. Zatkoff, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case
was tried in Louisville, Kentucky, on March 31, 2016. The
Charging Party, Jack Cooper Holdings d/b/a Jack Cooper
Transport Co. (the Company) filed the charge on August 3,
2015,1 and the General Counsel issued the complaint on No-
vember 30. The complaint alleges that General Drivers, Ware-
housemen & Helpers Local Union No. 89 (the Respond-
ent/Union) violated Section 8(b)(3) of the National Labor Rela-
tions Act (the Act) by failing and refusing to provide requested,

1 All dates are in 2015 unless otherwise indicated.
relevant information to the Company. (GC Exh. 1(c).)
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation with facilities located in Kansas
City, Missouri and Louisville, Kentucky, is engaged in the
interstate transportation of automobiles (also referred to as
“carhaul”). Annually, it derives gross revenue in excess of
$50,000 for the transportation of interstate freight in and be-
tween various states in the United States.
The parties have stipulated, and I find, that the Company is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. The parties have also admit-
ted, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Company is a trucking company that transports automo-
biles throughout the United States. Curtis Goodwin (Good-
win), senior vice president, handles labor relations.
The Parties are signatories to the National Master Automo-
bile Transporters Agreement (NMATA). The NMATA, under
Article 33, includes a Work Preservation Agreement (WPA),
which contractually limits signatory employers from diverting
or transferring any carhaul or transport work to nonunion enti-
ties or carriers. (GC Exh. 3.) In addition, Article 33, section 3
of the NMATA sets forth the procedure for an expedited griev-
ance and arbitration procedure for alleged violations of this
provision. That process requires that the parties hold a local
level hearing (LLH) within 15 days from the date of the em-
ployer’s receipt of the grievance.
JC Holdings is also parent company to controlled affili-
ate/subsidiary, Jack Cooper Logistics (JC Logistics). JC Logis-
tics operates as a nonunion broker company that has, for peri-
ods relevant to this case, solicited and obtained carhaul traffic,
and offered and/or bid it out to automobile transport carriers.
The following employees of the Company (the Unit) consti-
tute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
[A]ll employees in the classification of work covered by the
National Master Automobile Transporters Agreement, effec-
tive June 1, 2011 to August 31, 2015, and Supplements there-
to, but excluding supervisory, managerial, guard and confi-
dential employees.
(GC Exh. 1(c), para. 7; GC Exh. 3.) At all material times, the
Company has recognized the Union as the exclusive collective-
bargaining representative of the Unit. This recognition has
been embodied in the collective-bargaining agreements. Fred
Zuckerman (Zuckerman) is the president of Local 89, and its
agent within the meaning of Section 2(13) of the Act.
B. The Underlying Dispute
This case arose out of a grievance filed on February 11 by
GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 89 5
(AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS)
the Union against the Company for violating the WPA in Arti-
cle 33 of the NMATA. (GC Exh. 2.) In that grievance, the
Union claimed that the Company, through its affiliate JC Logis-
tics,
[H]as diverted bargaining unit work currently performed by
bargaining unit employees domiciled in Bowling Green, War-
ren County, Kentucky and the surrounding geographic area
and is otherwise currently diverting bargaining unit work cov-
ered under the NMATA. The bargaining unit work consists
of hauling vehicles from terminals in Louisville/Jefferson
County Kentucky and the surrounding area and other areas
covered by the NMATA and Central-Southern and Eastern
Supplements.
(Id.) The grievance alleged that the underlying incident oc-
curred on January 14 “via Auction to Auction Vehicle Transit
Order from Manheim, New Jersey,” and requested that a LLH
be held within 15 days of the grievance, pursuant to Article 33,
section 3(a)(3)(i), and that JC Holdings “cease and desist di-
verting bargaining unit work to its controlled affiliate [JC Lo-
gistics] under the NMATA.” (Id.)
Pursuant to NMATA Article 33, section 3 grievance proce-
dures, the parties participated in a telephonic LLH on February
27. Goodwin represented the Company. Zuckerman, David
Suetholz (counsel), Avral Thompson (business agent) and Rob-
ert Colone represented the Union. (GC Exhs. 10 and 11.)
During the LLH, Zuckerman, clarified the substance of the
grievance allegations. He explained that in January, one of the
Local 89 members alerted the Union that at the Manheim Auto
Auction near Bordentown, New Jersey, JC Logistics had di-
verted union work to a nonunion carrier, Virginia Auto
Transport. That employee also complained that in doing so, JC
Logistics had cut the pay rate for his load down to the Virginia
Auto Transport rate. Goodwin explained that JC Logistics
obtained loads from various places, with different rates. Zuck-
erman asserted that the Union’s investigation of the incident
resulted in a finding that JC Logistics had been diverting bar-
gaining unit work to nonunion carriers in violation of the WPA.
(GC Exh. 10; Tr. Exh. 34–35.) Specifically, Zuckerman main-
tained that,
Now in doing quite a bit of research on this, we understand
that Logistics has got probably a dozen or so places around
the country—Detroit Metro is one of them and I contacted
some people at Detroit Metro, and the way it works up there
now is that Logistics is operating an office up there. Our guys
get dispatched – the Cooper Transport guys get dispatched,
but then they have to check in with the Logistics office first,
and they may change [their] loads at that time.
They may give them different loads at that time, and take their
loads and give them to nonunion competitors is what those
drivers up there are telling me, and now because the Company
is not backhauling, Logistics is giving nonunion work – or
nonunion carriers work out of Detroit Metro and make our
guys deadhead home, which if they’re giving it to nonunion
carriers, they’re also violating the agreement. So that’s the
basis of the complaint is that Logistics is obtaining this car-
haul traffic, and they are dolling it out to nonunion carriers.
(GC Exh. 10, pp. 3–4.)
Finally, Zuckerman confirmed that the grievance was not
about the rate dispute, but about JC Logistics diverting union
work to nonunion carriers across the country—in other words,
not just in Bordentown, New Jersey, but in Detroit Metro and
other areas. This is quite evident from the following LLH con-
versation:
MR. GOODWIN: So Fred [Zuckerman], once again to be
sure I’m clear. Basically this is about – is it about – is it about
– I guess it’s just sort of like a blanket grievance right. It’s not
just about the locations you mentioned, it’s about anywhere
we pick up used cars.
MR. ZUCKERMAN: Yes, specifically it was – when it came
to our attention was the situation in Bordentown, and then
when we got looking into it, it became much broader than
that, and still all a violation in our opinion. So yes, it’s about
the diversion of carhaul work to nonunion carriers, yeah.
MR. GOODWIN: Yeah, ok, you know what I don’t think I
have anything else. So this has nothing to do with the rates
that the drivers get and those kind of things, this is just –
MR. ZUCKERMAN: No, that wouldn’t be an Article 33
grievance, I mean that would be just a regular claim under the
contract.
(GC Exh. 10, pp. 13–14; Tr. 158.)
In addition, Zuckerman pointed out that Article 33 required
the parties to notify the co-chairpersons of the local level of the
grievance and provide them with their position statements.
However, referring to the Union’s pending information requests
(to the Company), he asked “[c]ould we agree . . . not to do that
[move towards that next step in the grievance/arbitration pro-
cess] until we get the information?” Goodwin agreed, and
Zuckerman said that “[o]nce we get the information, we’ll take
a look at it and then we’ll figure out what the timelines going to
be.” 2 (GC Exh. 10, p. 12.)
C. The Company’s Request for Information
On March 13, Goodwin, sent Zuckerman a written request,
asking that the Union furnish it with certain information within
15 days. There were 17 requests for information, but the com-
plaint only alleged violations in connection with numbers 4, 7,
9, 10, 13, 14, 15, and 17, as follows:
4. Provide all details of the alleged rate dispute brought to the
Union’s attention, on or about January 15, 2015 which gave
rise to the Union’s allegation of a violation of Article 33 and
the WPA, including date of alleged rate dispute, names of all
Jack Cooper drivers involved, specific details of loads in-
volved including locations, rate of pay, delivery locations of

2 I note here that the General Counsel also filed a complaint based
on the Company’s failure to ultimately respond to the Union’s requests
for information. On January 27, 2016, Administrative Law Judge
Melissa Olivero found that the Company violated the Act when it failed
and refused to provide information to the Union. (Case No. 09–CA–
150482 is pending before the Board).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said loads, and name of any non-union entities involved.
7. Please provide a complete copy of the Union’s claimed in-
vestigation which led it to conclude that Jack Cooper Logis-
tics, LLC was diverting car haul work to a non-union carrier,
including any and all statements obtained, written or other-
wise, any and all documents obtained or received including
load sheets, reports, pay sheets, dispatch records, logs, as-
signments, transit orders, grievances, and email correspond-
ence or other electronic forms of communication. Also pro-
vide names and contact information for all persons contacted,
talked to or interviewed by Local 89 and the sum and sub-
stance of the information obtained from each individual.
. . . .
9. Provide the names and contact information for all persons
contacted and/or interviewed by Local 89 at Detroit Metro as
part of its investigation of Jack Cooper Logistics, LLC includ-
ing the date of such contact and/or interview.
10. Provide a copy of any notes, written statements, record-
ings or other documents obtained from the persons identified
in Paragraph 8 above. If no such documents exist, provide a
detailed summary of the information obtained from each indi-
vidual identified in Paragraph 8 above.
. . . .
13. Provide evidence that Jack Cooper Logistics, LLC
changed loads for Jack Cooper drivers including date, loca-
tion, loads involved, delivery points for said loads, rates of
pay for said loads, name of driver involved, name of any non-
union entity involved, copy of any grievance filed and driver
logs.
14. Provide evidence that Jack Cooper Logistics, LLC took a
load or loads away from Jack Cooper Transport drivers and
gave same to a non-union entity including date of occurrence,
location of occurrence, driver involved, loads involved, name
of non-union entity, delivery points for loads involved, pay
rates for loads involved, copy of any grievance filed, driver
logs and any other information in support of the Union’s alle-
gation.
15. Provide any and all evidence to support Local 89’s claim
that Jack Cooper Logistics, LLC gave work to non-union enti-
ties and made Jack Cooper drivers deadhead home empty in-
cluding date of occurrence, location of occurrence, name and
contact information of driver, load involved, delivery point of
load, pay rate of load, non-union entity involved, copy of
grievance, driver logs, and any other information within Local
89’s possession.
. . . .
17. For each type of traffic identified in Paragraph 15 above,
please provide the following: date of diversion, location
where diversion took place, name of Jack Cooper Transport
driver or other bargaining unit driver involved, non-union en-
tity involved, load(s) involved including destination and pay
rates, copies of any grievances, copies of drivers logs, and any
other evidence within Local 89’s possession or knowledge.
(GC Exh. 4.)
On March 26, Zuckerman responded to Goodwin’s requests
for information, in relevant part, as follows:
4) Bargaining unit member Rick Nicolson was upset that his
rate had been cut out of Manheim, New Jersey. When he
asked to see the load he was given in Manheim, New Jersey,
the security guard told him that it was not his load that it be-
longed to Virginia Auto Transport. Nicholson then told his
Union steward and business agent Avral Thompson about his
concern;
. . . .
7) The Union objects to this request to the extent that it is
covered by attorney client privilege. However, without waiv-
ing said objection, see attached documents;
. . . .
9) The Union objects to the relevance of this request and re-
quests a justification for the requested information.
10) The Union objects to this request to the extent that it is
covered by attorney client privilege. However, without waiv-
ing said objection, see attached documents;
. . . .
13) The Union objects to the relevance of this request.
14) The Union will provide documents responsive to this re-
quest as soon as it receives them from the employer.
15) The Union is unable to satisfy this request at this time be-
cause it has not received the requested vehicle transit orders
from Manheim, New Jersey.
. . . .
17) The Union will supply the requested information once it
receives it from the employer.
(GC Exh. 5.) On a subsequent date, the Union provided the
referenced attached documents, consisting of two “Auction to
Auction Vehicle Transit Orders,” State of Delaware UCC filing
history for JC Logistics and results of the Union’s nationwide
business public records search for JC Logistics. (GC Exh. 5,
attachments.)
Dissatisfied with those responses, the Company renewed its
request for information on April 10. Goodwin set forth the
reasons why he believed the Union’s March 26 responses were
“extremely deficient,” and “a deliberate attempt on the part of
Local 89 to provide false or misleading information designed to
subvert the information gathering process.” Goodwin ex-
plained that he requested the information based on Zucker-
man’s representations at the LLH that the Union had investigat-
GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 89 7
(AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS)
ed “quite a bit,” which led to its conclusion that the Company
had been diverting car haul work to nonunion carriers. (GC
Exh. 6.) More specifically, Goodwin stated that the response to
#4 lacked information about details of the loads involved, in-
cluding “locations, rate of pay and delivery locations of said
loads.” Goodwin also amended his request to include:
[D]ate bargaining unit member Rick Nicholson spoke to
Business Agent Avral Thompson; any written notes of Busi-
ness Agent Avral Thompson’s discussion with Nicholson;
any written statements by Nicholson; time of discussion with
security guard; name of security guard; phone records to veri-
fy said discussions; and names of any and all individuals Mr.
Thompson discussed this matter with after speaking with Ni-
cholson.
(Id.) In relation to #7, Goodwin refuted the Union’s assertion
of the attorney client privilege, and maintained that, “Local 89
made it clear during the local level hearing that it conducted an
investigation which led it to conclude there was a violation of
the WPA,” and that “[s]aid investigation is clearly discoverable
and relevant.” (Id.) Goodwin also found fault with the docu-
ments provided in that they were public records of corporate
filings and nonresponsive.
Goodwin said that request #9 was relevant because Zucker-
man represented that the Union had contacted and/or inter-
viewed Detroit Metro employees as part of its investigation.
He reiterated that the Company required this information “in
order to conduct their own investigation as to the accuracy of
the representations made by Local 89 and for purposes of iden-
tifying other relevant information.” (Id.) Next, Goodwin re-
newed and modified request #10 to ask that if no such docu-
ments exist, the Union “provide a detailed summary of the in-
formation obtained from each individual identified in paragraph
9 above.” Goodwin also requested an explanation for the Un-
ion’s attorney client privilege claim. (Id.)
Regarding 13, 14, and 15, Goodwin clarified that infor-
mation about JC Logistics changing loads was relevant due to
the Union’s LLH claim that it had done so in violation of the
WPA. In addition, Goodwin rejected the Union’s answer that it
would only provide the information requested in #14 and #15
when it received it from the employer. He insisted that such
response “makes clear that Local 89 has falsely accused the
Employer of committing acts which have no basis in fact,” and
renewed and modified these requests to include “a request for
admission by Local 89 that it has/had no such evidence to justi-
fy its grievance.” (Id.)
Subsequent to April 10, Goodwin received what he believed
to be the Union’s response to his April 10 renewed requests.
This consisted of the same March 26 responses with a date
stamped in April 2015. Consequently, on April 27, Goodwin
sent a letter to the Union, admonishing it for merely resending
its initial response. (GC Exhs. 8, 7.) Goodwin wrote that, “. . .
Local 89 is deliberately subverting the information gathering
process which is not only a violation of the NLRA but a clear
violation of the express terms of the [NMATA].” In turn,
Goodwin resent the Company’s April 10 renewed information
requests to the Union. (GC Exh. 8.) He could not, however,
say for sure that the duplicate responses came from the Union.
Zuckerman denied sending the same March 26 letter in re-
sponse to the Company’s renewed requests. Instead, he testi-
fied that the Union resent the March 26 letter on about March
31, along with attached documents that were inadvertently
omitted from the initial responses. (Tr. 175–176.)3 Neverthe-
less, there is no dispute that the Union chose not to respond to
the renewed requests.
In fact, Zuckerman agreed that the Union simply ignored the
April 10 renewed requests because he believed that the Compa-
ny was just “messing” with the Union by asking for the same
information that the Union had asked the Company for. He
testified that:
[W]e did not respond to - - my attorney did respond to their
April 27. I got frustrated during the process because we were
getting nowhere, so two things happened after March 26. I
told my attorney to file an unfair labor practice and to respond
to them, and that’s what we did. We figured that we could
take care of it by filing the unfair labor practice because we
were getting nowhere . . . they were just messing with us.
(Tr. 177.) He also responded that, “[i]f we didn’t respond to it,
we didn’t respond to it.” (Tr. 178.)
On April 27, the Union’s attorney, David Suetholz (Sue-
tholz), wrote to Goodwin, in relevant part, that:
To date, the Union has been completely forthright by answer-
ing your questions at the local level hearing and has provided
every document obtained at this point in the Union’s investi-
gation of your company’s violation. To the extent that you
have requested information that is unknown to President
Zuckerman, such as approximate dates when he became
aware of certain entities or practices, the Union simply cannot
and will not fabricate a response. Questions seeking to ascer-
tain the names of drivers in other locations who have provided
information relevant to this grievance will not be answered
unless compelled by a neutral arbitrator because of the serious
concern of retaliation against these individuals. The Union
has provided you with the names of its own members because
the Local is confident of its ability to protect the rights of its
members under the Agreement.
(GC Exh. 9.) Suetholz made no mention of the April 10 re-
newed requests. Nor did he explain or provide justification for
the Union’s assertion of the attorney-client privilege, or insist-
ence that certain requests were irrelevant. Instead, he men-
tioned for the first time that the Union would not furnish names
of drivers in other locations due to the potential for retaliation
against them, and that the Union had provided all other infor-
mation obtained in its investigation.

3 The Company received those documents between March 26 and
April 10. (Tr. 176.)
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D. Testimony and Credibility Findings4
I credit Goodwin’s straight forward and believable testimony
regarding the reasons for each request. It was consistent with
his written explanations, and also with what Zuckerman com-
municated during the LLH. He relied on Zuckerman’s LLH
account of diversion of union work to a nonunion carrier (Vir-
ginia Auto Transport in Bordentown, New Jersey). According
to that account, a Local 89 member’s alleged rate dispute led to
the Union’s investigation and findings that the Company had
been replicating diversion activities at Detroit Metro and in
other parts of the country. Goodwin testified that he needed the
details about the locations, load sheets, transit orders, dates of
diversion, type of traffic or vehicles involved, unit drivers in-
volved, nonunion entities involved and other information which
formed the basis of the Union’s allegations so that the Compa-
ny could investigate and prepare for the grievance and arbitra-
tion process. This included information about the individuals
contacted by the Union at Detroit Metro, since Zuckerman
specifically stated that in conducting their research, he contact-
ed some people at Detroit metro, and discovered that the Com-
pany was giving nonunion work out of Detroit Metro, changing
Union drivers’ loads and making them “deadhead” home with
empty loads.
Therefore, I fully discredit Zuckerman’s testimony that the
grievance issue only covered the diversion of work originating
out of Bordentown, New Jersey. He claimed that any mention
of issues at Detroit Metro or elsewhere was “just” talk,” a “sep-
arate conversation,” and had nothing to do with this case. (Tr.
183–184). However, during the LLH, Goodwin asked Zucker-
man whether the grievance was a “blanket grievance . . . about
anywhere we pick up used cars.” In response, Zuckerman as-
sured that:
Yes, specifically it was – when it came to our attention was
the situation in Bordentown, and then when we got looking
into it, it became much broader than that, and still all a viola-
tion in our opinion. So yes, it’s about the diversion of carhaul
work to nonunion carriers, yeah.
(GC Exh. 10.) In addition, I find that Zuckerman’s testimony
in this regard was intentionally misleading and evasive. Even
the grievance form appears to indicate that the Union’s WPA
violation claim extended beyond Bordentown, New Jersey, to
unit work consisting of “hauling vehicles from terminals in
Louisville/Jefferson County Kentucky and the surrounding area
and other areas covered by the NMATA and Central-Southern
and Eastern Supplements.” (GC Exh. 2.)

4 A credibility determination may rely on a variety of factors, in-
cluding 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 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. My credibility findings
are incorporated into the findings of fact set forth herein.
Goodwin testified that the March 26 responses were insuffi-
cient because the Union only provided the member driver’s
name (Nicholson), but not the dates of the dispute, whether
there were other drivers involved, rates of pay and details of the
loads. Goodwin explained that the auction transit orders were
only partially responsive to the Company’s requests. They
were vague, and did not address how the actual units/vehicles
were to be transported, transit logs, drivers involved, persons
with whom the Union spoke about Detroit Metro, circumstanc-
es around alleged “deadheading” of drivers, and details about
the Company diverting traffic in New Jersey and Detroit. (Tr.
42–43, 131–133.)
Regarding the Union’s response that it would provide certain
information once it received it from the Company, Goodwin
testified that if the documents were in the custody of the Com-
pany, the documents were not easily accessible without more
details from the Union on what it had discovered. He described
that trying to get the information without further details would
be “like looking for a needle in a haystack. We’re a big com-
pany. We haul thousands of loads a day. We haul millions of
vehicles a year, and the Union alleged that they had that infor-
mation. I believe personally they still have the information and
won’t share it with us.” (Tr. 45.) Goodwin believed that the
Union should have been able to provide information on which
it based its grievance and allegations. (Tr. 42–45.) He also
believed that the Union had possession of what he asked for
based on Zuckerman’s explanations during the LLH.
Regarding the Union’s April 27 response, Goodwin denied
that the Union had answered all of the Company’s questions at
the LLH. He testified that he did not ask for any specific in-
formation or documents at that time.5 (Tr. 48). Based on the
LLH, Goodwin did not believe that the Union had provided all
of the information it possessed. (Tr. 49–50; 56, 62–63.)
Contrary to his statements during the LLH that he spoke to
multiple people, Zuckerman testified that he only talked to one
Detroit Metro Local 299 member, Tom Miller (Miller), who
was also his close friend.6 Zuckerman testified that in 2015,
Miller informed him about JC Logistics’ diversion of unit car-
haul work to nonunion carriers in the Detroit Metro area.7
Zuckerman maintained that the Union refused to divulge Mil-
ler’s name to the Company because of the fear that the Compa-
ny would retaliate and possibly terminate Miller within months
of his retirement.8 He based this belief on alleged past reprisals
against the Company’s employees for speaking out or filing
grievances against the company. However, there was no evi-
dence presented that the Company had retaliated against Miller

5 I credit Goodwin’s testimony. The LLH transcript confirms that
he did not ask for the specific, detailed information or documents
sought in the requests during the LLH.
6 Beginning with the LLH and up until the trial, the Union contin-
ued to mislead the Company into believing that Zuckerman had talked
to more than one person in the Detroit Metro area. (Tr. 163–169, 180–
181; 195–203; GC Exh. 9.)
7 Zuckerman testified that he “misspoke” during the LLH, but I find
it unbelievable that he did so. (Tr. 180–182.) I also find it irrelevant
that Zuckerman might have been exaggerating or posturing about hav-
ing evidence to support his claim. (Tr. 85.)
8 Miller retired in October 2015.
GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 89 9
(AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS)
or others. Rather, Miller had a prior grievance against the
Company, which Zuckerman believed took too long to resolve.9
Miller confirmed that he had not wanted the Union to pro-
vide his name and contact information to the Company. How-
ever, he never asked or told Zuckerman not to do so. Miller
also admitted that he had not personally experienced reprisals
from the Company, but rather had “seen [other guys] just
washed out” by the Union. By this, he explained that he heard
Kevin Moore, the head of his Local 299 and director of the
carhaul division, verbally disparage a bargaining unit employee
before an arbitration hearing. (Tr. 195–203.)
Further, Zuckerman admitted in his Board affidavit that
“[t]he Union did not respond to or provide any additional in-
formation to the Employer’s March 13 and renewed April 10
requests for information to Question 9 because the Union did
not consider that information to be relevant.” Zuckerman never
mentioned any fear of retaliation in his affidavit. (Tr. 171–
172.) Zuckerman also testified that he would not have been
able to represent Miller against any retaliation claims because
Miller belonged to another local. However, as stated, there was
no evidence to show that the Company (or his local) had at-
tempted to retaliate against Miller in the past. Nor did the
Company attempt to retaliate against Nicholson. Therefore, I
question the legitimacy of and discount Zuckerman’s testimony
and the Union’s much belated explanation as to why it would
not supply names and information about employees in the De-
troit Metro area or outside of Local 89.
Zuckerman also maintained that a number of the Company’s
requests for information were identical to those of the Union.
(Tr. 171–172.) When asked, Goodwin denied that the Compa-
ny’s request number 14 (GC Exh. 4) was the same as the Union
request number 19 (R. Exh. 2). He also denied that the Com-
pany’s request number 15 (GC Exh. 4) asked for the same in-
formation as did the Union’s requests number 4 and number 5
(R. Exh. 3) and number 19 (R. Exh. 2).
III. DISCUSSION AND ANALYSIS
A. Legal Standards
It is well established that, pursuant to Section 8(b)(3) of the
Act, a union’s duty to furnish information parallels that of an
employer under Section 8(a)(5) and (1) of the Act. California
Nurses Ass’n., 326 NLRB 1362, 1362, 1366 (1998), citing Ser-
vice Employees Local 144 (Jamaica Hospital), 297 NLRB
1001, 1003 (1990)); Northern Air Freight, 283 NLRB 922
(1987)); Plasterers Local 346 (Brawner Plastering), 273
NLRB 1143, 1144 (1984) (Board found that the information
requested by the employer was “unquestionably relevant to
collective bargaining”); Printing & Graphic Communications
Local 13 (Oakland Press), 233 NLRB 994, 996 (1977).10 An
employer has a statutory obligation to provide a labor union,
which is the collective-bargaining representative of its employ-
ees, with requested information which is necessary and relevant
for carrying out the labor organization’s duties in representing

9 Nevertheless, the arbitration panel decided in Miller’s favor.
10 See also (regarding employer’s duty), NLRB v. Acme Industrial,
Co., 385 U.S. 432, 437–438 (1967); NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956); Aerospace Corp., 314 NLRB 100 (1994).
unit employees. Just as the employer is obligated to turn over
relevant information so that the union can carry out its respon-
sibility to handle grievances, the union must provide relevant
information so that the employer can evaluate the merits of
grievances and even possibly resolve them. International
Broth. of Firemen & Oilers Local 88 (Diversity Wyandotte),
302 NLRB 1008, 1009 (1991) (citing NLRB v. Acme Industrial
Co., 385 U.S. 432, 437–438 (1967)). Therefore, an employer’s
request for information relating to a grievance is relevant in that
it assists the employer in assessing the union’s position and
preparing for the grievance-arbitration process. Local 13, De-
troit Newspaper Printing and Graphic Communications Union,
233 NLRB 994, 996 (1977). Where the request concerns in-
formation relating to employees in the bargaining unit, such
information is presumptively relevant. Fawcett Printing Corp.,
201 NLRB 964 (1973). When it is for information concerning
employees outside the bargaining unit, the requesting party
must show that it is relevant to bargainable issues. United
States Testing, 324 NLRB 854, 859 (1997), enfd. 160 F.3d 14
(D.C. Cir. 1998); Brooklyn Union Gas Co., 220 NLRB 189
(1975).
The Board does not assess the merits of the grievance or un-
derlying dispute in order to determine relevancy. Postal Ser-
vices, 332 NLRB 635 (2000). Rather, the standard for relevan-
cy is a “liberal discovery-type standard,” with the sought-after
evidence not having to be necessarily dispositive of the issue
between the parties. Rather, it must have only some bearing
upon it, and be of probable use to the labor organization in
carrying out its statutory responsibilities (or in this case, an
employer in investigating the merits of the allegations). Shop-
pers Food Warehouse, Corp., 315 NLRB 258, 259 (1994);
Bacardi Corp., 296 NLRB 1220 (1989); Howard University
Hospital, 290 NLRB 1006 (1988); Pfizer, Inc., 268 NLRB 916
(1984). Necessity is not a guideline in itself but rather is direct-
ly related to relevancy, and only the probability that the re-
quested information will be of use to the labor organization
need be established. Bacardi Corp., supra. Finally, “part of the
duty to supply relevant information includes the duty to do so
in a timely manner,” and the failure to do so constitutes a viola-
tion of . . . the Act.” San Francisco Newspaper Agency, 309
NLRB 901 (1992); Mary Thompson Hospital, 296 NLRB 1245,
1250 (1989).
If an information request is ambiguous, overbroad or con-
cerns nonunit employees, this does not excuse the Union from
its obligation to reply. The Board has long held that “an em-
ployer may not simply refuse to comply with such requests,
“but must request clarification and/or comply with the request
to the extent that it encompasses necessary and relevant infor-
mation.” Keauhou Beach Hotel, 298 NLRB 702, 702 (1990).
Therefore, as with an employer, a union may not ignore or de-
cide not to respond for those reasons without requesting clarifi-
cation, or explaining the basis for believing the requests are
ambiguous, vague or irrelevant.
Finally, I note here that the existence of an arbitration pro-
ceeding does not relieve either party from the duty to provide
relevant information requested by the opposing party. See
California Nurses Assn., supra at 1366, citing San Francisco
Newspaper Agency, 309 NLRB 901 at 901 (1992).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Requests Were Relevant
In applying the above legal standards to the instant case, I
find that the information requested by the Company is relevant
and necessary in order for the Company to investigate and pre-
pare for the grievance-arbitration process.
As shown above, the Union filed a grievance claiming that
the Company violated the WPA under Article 33 of the
NMATA by “diverting bargaining unit work currently per-
formed by bargaining unit employees domiciled in Bowling
Green, Warren County, Kentucky and the surrounding geo-
graphic area and is otherwise currently diverting bargaining
unit work covered under the NMATA.” Moreover, as previ-
ously stated, Zuckerman clearly communicated during the LLH
that the Union’s grievance claim extended to and included its
finding that the Company had also been diverting union work
to nonunion carriers in the Detroit Metro area and other parts of
the country.
During the LLH, Zuckerman stated that:
[I]n doing quite a bit of research on this, we understand that
Logistics has got probably a dozen or so places around the
country—Detroit Metro is one of them and I contacted some
people at Detroit Metro, and the way it works up there now is
that Logistics is operating an office up there. Our guys get
dispatched—the Cooper Transit guys get dispatched, but then
they have to check in with the Logistics office first, and they
may change [their] loads at that time…[t]hey may give them
different loads at that time, and take their loads and give them
to nonunion competitors is what those drivers up there are
telling me, and now because the Company is not backhauling,
Logistics is giving nonunion work—or nonunion carriers
work out of Detroit Metro and make our guys deadhead
home, which if they’re giving it to nonunion carriers, they’re
also violating the agreement. So that’s the basis of the com-
plaint is that Logistics is obtaining this carhaul traffic, and
they are dolling it out to nonunion carriers.
(GC Exh. 10, p. 4). When Goodwin sought confirmation as to
whether the grievance was much broader, Zuckerman con-
firmed that, “when it came to our attention was the situation in
Bordentown, and then when we got looking into it, it became
much broader than that, and still all a violation in our opinion.”
(Id.) Therefore, I find that the Company’s requests were suffi-
ciently relevant and necessary in order for it to respond to and
participate in the grievance filed by the Union.
After the Company demonstrates the relevancy of the re-
quested information, the Union has the burden to establish that
the information was not relevant, did not exist or for some other
valid and acceptable reason, could not be furnished. Samaritan
Medical Center, 319 NLRB 392, 398 (1995), citing Somerville
Mills, 308 NLRB 425 (1992) and Postal Service, 276 NLRB
1282 (1985). Here, the Union has failed to do so. The Union
argued that the information regarding Detroit Metro or other
areas was irrelevant because diversion of work there was not a
part of the grievance. I discredited Zuckerman’s testimony that
his mentioning Detroit Metro and other parts of the county was
just talk, and not relevant to the grievance. The Union also
argued that it had nothing else about its investigation to give to
the Company. I find this was not the case in that the Union
admittedly possessed additional information about diversion of
union work in the Detroit Metro and other areas
I understand that the Union is not able to supply information
that it does not have, but it has a duty to either provide relevant
information or tell the Company that it does not possess the
requested documents. Regency Service Carts, Inc., 345 NLRB
671 (2005); Beverly California Corp., 326 NLRB 153 (1998).
Rather than immediately letting the Company know that it did
not have additional information, the Union chose to wait about
a month after sending its initial March 26 responses. Similarly,
the Union waited until April 27 to inform the Company that it
would not produce names of drivers in other locations because
of an alleged fear of retaliation. (GC Ex. 9). The Union failed
to provide a reason for these delays. Therefore, I find that the
Union delayed in providing responses to the Company’s March
26 and April 10 requests for information. It also failed to pro-
vide additional information that I find it had, such as that per-
taining to Detroit Metro employees and the employee with
whom Nicholson spoke in New Jersey.
I further find that the Union failed to prove that its concerns
about reprisals by the Company outweighed its interest in hav-
ing such relevant information. Detroit Edison Co. v. N.L.R.B.,
440 U.S. 301, 302, 99 S. Ct. 1123, 1124, 59 L. Ed. 2d 333
(1979); Tritac Corp., 286 NLRB 522, 522 (1987). The Board
balances the need for information against any legitimate and
substantial confidentiality interest established by the requesting
party. Earthgrains Baking Companies, Inc., 327 NLRB 605,
611 (1999). As part of the balancing process, the party assert-
ing the claim has the burden of proving that such interests are
in fact present and of such significance as to outweigh the
need for the information. Jacksonville Area Assn., 316 NLRB
338, 340 (1995). This balancing test is applicable here where
the Union refused to supply evidence due to an alleged fear of
retaliation against certain employees. Based on the evidence, I
question the legitimacy of and discredit any real fear of retalia-
tion. If this fear existed or was so great, I find that Zuckerman
would have mentioned it in his Board affidavit. Instead, when
asked about it, he said that he did not provide information about
Detroit Metro or other employees because it was not relevant.
Further, contrary to what Zuckerman implied, there was no
evidence that Miller had been retaliated against by the Compa-
ny in the past. Nor had Nicholson been retaliated for complain-
ing about the rates and diversion in Bordentown. Therefore, I
find that the Union has a duty in this case to furnish infor-
mation requested by the Company’s regarding diversion activi-
ties and practices in Detroit Metro and other areas.
In addition, the Board has held that if an employer is con-
cerned about confidentiality, it cannot simply raise this con-
cern, but must instead come forward with an offer to accom-
modate both its concern and bargaining obligation. Tritac
Corp., 286 NLRB 522, 522 (1987). Thus, it was the Union’s
duty, upon timely asserting its confidentiality or retaliation
concerns, to promptly offer an accommodation to protect Miller
and/or other unit employees outside of Local 89. See The Fin-
ley Hospital, 362 NLRB No. 2, slip op. at 11–12 (2015) (em-
ployer violated the act when it failed to offer an accommoda-
tion for 2 months). Here, the Union failed to do so at any time.
Therefore, I find that all of the requests were relevant, even
GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 89 11
(AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS)
that information regarding unit employees outside of Local 89.
C. The Union Violated the Act by Failing and Refusing to Fur-
nish and Delaying in Furnishing Requested Information
Since I have found that the requests for information were rel-
evant to and necessary for the grievance process, I will address
whether or not the Union violated the act by failing to respond.
In California Nurses Assn., supra, the Board upheld the
judge’s decision that the union violated Section 8(b)(3) of the
Act, “by refusing to provide the Employer with the facts and
documents relevant to each incident on which the Respondent
is relying to support its grievance and the names of persons
involved in each incident.” This case also involved relevant
requests for information about employees who belonged to
various bargaining units. California Nurses Assn., supra at
1362. The Board did not agree that the employer was entitled
to the names of witnesses that the union intended to call, stating
that “it is well settled that there is no general right to pretrial
discovery in arbitration proceedings.” Id., citing Tool & Die
Makers’ Lodge 78, (Square D Co.), 224 NLRB 111, 112
(1976); Transport of New Jersey, 233 NLRB 694, 695 (1977);
and Firemen & Oilers Local 288 (Diversity Wyandotte), 302
NLRB 1008, 1008–1009 (1991). However, this limitation did
not include names of witnesses and evidence supporting the
actual incidents at issue. California Nurses Assn., supra; Fair-
mont Hotel Co., 304 NLRB 746, 748 (1991) (Board found a
violation where employer refused to furnish, before an arbitra-
tion, names of witnesses to an incident for which an employee
was disciplined); Transport of New Jersey, 233 NLRB 694
(1977) (Board found violation where party refused to supply
names and addresses of witnesses to an accident required to
process a grievance).
Here, the record shows that the Union provided written re-
sponses to the Company’s March 13 request for information on
March 26, and supplemented them with documents at some
time before April 10. The Union ignored the Company’s re-
newed requests dated April 10, which prompted the Company
to send another letter on April 27, with an attached copy of its
renewed requests. The Union sent a final response on April 27.
Regarding request number 4, the Union responded that its
member Nicholson, upset by his rate being cut out of Manheim,
New Jersey, was denied access to the load he was given in
Manheim. Further, Nicholson told the Union’s business agent,
Avral Thompson, that a security guard told him that the load
belonged to Virginia Auto Transport. The response did not,
however, specify the alleged date of the rate dispute, or specific
details of the loads involved, including locations, rates of pay
or delivery locations. In addition, the Union never responded
to the renewed requests for the date that Nicholson spoke to
Avral Thompson, time of discussion with the security guard,
phone records of any such discussions and other individuals
with whom the matter was discussed. Nor did it reference any
attached documents which might have been responsive. On
April 27, the Union mentioned that it would not make up in-
formation or dates unknown to Zuckerman. I find that these
responses are insufficient and nonresponsive. I do not believe
that the Union in its investigation failed to obtain dates and
other information requested from Nicholson or others.
Although the Union did not reference them in its response to
number 4, the transit orders sent to the Company on a later date
included origination and destination locations, types of
loads/vehicles, pay rates and pick-up and delivery dates. (GC
Exh. 5 attachments.) The first transit order, dated November
24, 2014, has Nicholson’s name along with some numbers
handwritten in, with the carrier listed as JC Transport. It lists
the pick-up location as Bordentown, New Jersey and the drop-
off as Nashville, Tennessee. The second transit order (on the
back of the first), dated January 14, 2015, reflects a load of
vehicles with a lower pay rate that appears to have left the same
origination site headed for Nashville, Tennessee. This order
also lists the carrier as JC Transport, but has the name “Daniel
Cole” handwritten on the side of it, and “Virginia Auto
Transport,” with “CROWE pulling out of Bordentown” hand-
written on the bottom. There is no explanation, however, as to
how these documents are responsive. Nor is there any indica-
tion that Nicholson’s load was taken away, that he was dead-
headed back home without a load or how was the affected JC
Transport on January 14. Therefore, I also find that the transit
orders and the written response to request number 4 were not
sufficiently responsive. The Union’s blanket response that it
had no additional documents is unsupported by evidence that it
had information in connection with Zuckerman’s discussions
with Miller, as well as Nicholson’s conversations with Thomp-
son and the security guard.
Further, the Union failed to respond to initial and renewed
requests, in other words, numbers 4, 7, 9–10, 13–14, 15, and
17. Regarding number 7, the Union initially objected, asserting
the attorney-client privilege, but without waiving said objec-
tion, stated to “see attached documents.” The Union gave no
explanation as to why it raised the attorney-client privilege.
The Company asked for the complete copy of the Union’s
claimed investigation which led to its conclusion that JC Logis-
tics had diverted union work to nonunion carriers, including
load sheets, reports, pay sheets, dispatch records, logs, assign-
ments, transit orders, grievances and email or other forms of
electronic communications. The attached documents included
the 2 auction to auction vehicle transit orders discussed above
and several pages of public records of corporate and UCC fil-
ings for JC Logistics. The initial response did not inform that
these were the only documents that the Union had in connec-
tion with its investigation, nor did it explain why the request
was irrelevant. Further, those documents did not include names
and contact information for “all persons contacted, talked to or
interviewed by Local 89 and the sum and substance of the in-
formation obtained from each individual.”11 (GC Exh. 5, p. 2).
I find that the Union failed to respond to this inquiry, as there is
evidence that it had additional information as set forth above.
Regarding number 9, the Union initially objected to the rele-
vance of the request and asked for justification as to why the
Company asked for the names and contact information for all
persons contacted and/or interviewed by Local 89 at Detroit
Metro as part of its investigation of JC Logistics. I find that the

11 A respondent is no longer exempt from providing witness state-
ments in response to information requests. See Piedmont Gardens, 362
NLRB No. 139 (2015).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company provided adequate justification for its inquiry in its
April 10 renewed request. Moreover, the Union did not raise
the fear of the Company retaliating against Detroit Metro or
other non-Local 89 unit drivers until April 27. This was after
Zuckerman stated during the LLH that he had investigated the
diversion claim, which included talking to “people” at Detroit
Metro. Since I have found the information relevant, and also
discredited the Union’s reasons for not providing information
about other local union members, including Miller, I find that
the Union failed to completely respond and delayed in provid-
ing its April 27 response.
Regarding number 10, the Union once again asserted the at-
torney-client privilege without explanation. Although it di-
rected attention to the attached documents, those documents did
not include any notes, statements, recordings or summary of
information obtained from each person interviewed. Nor did
the Union notify the Company that it only talked to two indi-
viduals—Nicholson and Miller.
Regarding number 13, the Union objected based on rele-
vance. Since I have found that this information pertaining to
JC Logistics diverting and changing loads was relevant based
on Zuckerman’s statements during the LLH, I find that the
Union failed to provide relevant and necessary information.
Finally, regarding numbers 14, 15 and 17, the Union claimed
it would provide responsive documents as soon as it received
them from the employer (Nos. 14 & 17), and that it would not
be able to respond because it had not yet received requested
vehicle transit orders from Manheim, New Jersey (No. 15).
Here, the Company asked for evidence to support the Union’s
allegations during the LLH. I find this answer to be nonrespon-
sive to the request for relevant information. In addition, I find
that the Union based its response on the irrelevant fact that the
Company failed to provide it with information. See United
States Gypsum Co., 200 NLRB 305, 308 (1972).
As stated, it was not until its April 27 response that the Un-
ion decided to advise the Company that it had already provided
all of the information in its possession. The level of detail in-
cluded in the Company’s information requests was not dis-
cussed at the LLH. Moreover, there was no explanation pro-
vided as to why the Union waited to April 27 to do so, except
that Zuckerman was upset with the Company and refused to
comply. Nor was there any reason given as to why the Union
waited until April 27 to raise its fear of retaliation on behalf of
members outside of Local 89.
I do not find, however, that the Union had a duty to provide
the Company with “a request for admission by Local 89 that it
has/had no such evidence to justify its grievance” (requests 14
and 15). (GC Exh. 6). It did however, have a duty to timely
notify the Company of any information that it did not possess.
Since I have found that the requested information was rele-
vant to the allegations put forth in the grievance and at the
LLH, with the exception of the request for admissions, I find
that the Union neither sufficiently nor timely responded to the
initial or renewed requests at issue. In failing to do so, the Un-
ion has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(3) of the Act.
D. Affirmative Defenses
First, the Union’s defense that the complaint failed to state a
claim upon which relief may be granted is unsupported by the
record.
In its brief, the Union made several other arguments under
the auspices of findings of fact. (R. Br. at paragraphs 70–75.)
The Union argued that a party’s assertion that it needs infor-
mation to process a grievance does not automatically compel
the responding party to supply all information. I agree, and
have found based on the circumstances of this particular case,
that the General Counsel has met its burden of showing that the
Company was entitled to receive relevant information to assist
it in the grievance/arbitration process. Detroit Edison Co. v.
NLRB, supra; NLRB v. Truitt Mfg. Co., supra.
The Union also argued that it is not required to furnish in-
formation that it does not have, citing several cases in support
of this argument. In those cases, the respondents first had to
satisfy their burden of showing that the information did not
exist. In this case, as discussed above, the evidence shows that
the Union admittedly refused to provide the Company with
information that it had concerning Detroit Metro and other
evidence surrounding its claim that the Company had been
diverting union carhaul work. Zuckerman’s statement during
the LLH, as well as the grievance, triggered the Union’s duty to
provide the information.
The Union’s argument that the Company had certain of the
requested information available to it through other means, such
as its affiliates, is also without merit. The fact that a requesting
party may obtain information by other means or from another
source does not minimize its obligation to furnish relevant in-
formation. Holyoke Water Power Co., 273 NLRB 1369, 1373
(1985). Goodwin admitted that the Company or one of its affil-
iates might have some information about its drivers or loads,
but sufficiently explained that it would be difficult to find with-
out knowing more details about the Union’s diversion claims.
The Union asserted that the Company acted in bad faith by
using its information requests as a means to delay an arbitration
hearing, but the record does not demonstrate that this was the
case. Rather, the evidence shows that the Union requested an
extension of time to allow for responses to its own requests.
There is no evidence that the Union objected in either of its
responses (March 26 or April 27) to the Company’s right to
make such requests. Although Administrative Law Judge Oli-
vero found that the Company violated the Act by failing to re-
spond to Union’s requests for information, she did not find that
in doing so, the Company sought to delay the arbitration pro-
cess. Moreover, the issue of whether the Company or the arbi-
tration committee delayed arbitration is not before me.
I also reject the Union’s bad-faith contention that many of
the Company’s requests mirrored their own. After reviewing
the examples that the union counsel pointed out in his questions
to Goodwin on cross-examination, I find no evidence to support
this argument.
Finally, I have already addressed the Union’s confidentiality
concerns, and found them to be without merit. In doing so, I
have agreed with the General Counsel that the Union must have
provided evidence of its confidentiality interests, and not just
“generalized accusations” of a “present danger that outweighs
GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION NO. 89 13
(AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS)
the other party’s interest.” (GC Br. at p. 10), citing King
Broadcasting Co., 324 NLRB 332 (1997).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is, and, at all material times, has been the ex-
clusive bargaining representative for the following appropriate
unit:
[A]ll employees in the classification of work covered by the
National Master Automobile Transporters Agreement, effec-
tive June 1, 2011 to August 31, 2015, and Supplement there-
to, but excluding supervisory, managerial, guard and confi-
dential employees.
4. By failing and refusing to provide and delaying in provid-
ing the Company with relevant information as requested in its
March 13, 2015 requests for information and April 10 renewed
requests, the Union has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and (1) of
the Act.
5. The unfair labor practices committed by the Union are
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Union 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.
The Union is hereby ordered to cease and desist from refus-
ing to bargain with the Company by refusing to provide and
delaying in providing information that it needs to prepare for
and/or defend the underlying grievance. In addition, it is or-
dered to furnish the Company with all information requested in
its information requests dated March 13 and April 10 (i.e., re-
quests 4, 7, 9, 10, 13, 14, 15, and 17), except for the infor-
mation requiring the Union to provide admissions that they did
not have any evidence that the Company had diverted union
work.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Union, General Drivers, Warehousemen and Helpers
Local Union 89 (a/w The International Brotherhood of Team-
sters), its officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
Company, by failing and refusing to furnish relevant requested
information.

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(b) Failing and refusing to bargain collectively with the
Company by delaying in providing relevant requested infor-
mation.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Promptly furnish the Company in a timely manner the in-
formation that it requested on March 13 and April 10 (i.e., re-
quests 4, 7, 9, 10, 13, 14, 15, and 17), except for the infor-
mation requiring the Union to provide admissions that they did
not have any evidence that the Company had diverted union
work.
(b) Within 14 days after service by Region 9, post at its facil-
ities in Kansas City, Missouri and Louisville, Kentucky, copies
of the attached notice marked “Appendix.”13 Copies of the
notice, on forms provided by the Regional Director for Region
9, after being signed by the Union’s authorized representative,
shall be posted by the Union and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Union customarily
communicates with its member employees by such means.
Reasonable steps shall be taken by the Union to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Union has taken to comply.
Dated, Washington, D.C. February 6, 2017
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection

13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to bargain collectively with Jack
Cooper Holdings d/b/a Jack Cooper Transport Co. by refusing
to furnish it or delaying in furnishing it with relevant and nec-
essary requested information in connection with the grievance
that we filed.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL furnish Jack Cooper Holdings d/b/a Jack Cooper
Transport Co. with the information it requested on March 13,
2015, and on April 10, 2015, regarding requests 4, 7, 9, 10, 13,
14, 15, and 17 (except for requests for admissions that we did
not have any evidence to support our grievance).
GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS
LOCAL UNION 89 (A/W THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS)
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CB-157260 or by using the QR code be-
low. 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.