JACK COOPER HOLDINGS D/B/A JACK COOPER TRANSPORT CO. AND JACK COOPER LOGISTICS

National Labor Relations Board - Administrative Judge Opinions

Jan 27, 2016

09-CA-150482 (N.L.R.B. Jan. 27, 2016)

JD–07–16
Louisville, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
JACK COOPER HOLDINGS D/B/A JACK
COOPER TRANSPORT CO.
and Case 09–CA–150482
GENERAL DRIVERS, WAREHOUSEMEN &
HELPERS LOCAL UNION NO. 89
Eric Brinker, Esq. and
Daniel Goode, Esq.,
for the General Counsel.
Kenneth W. Zatkoff, Esq.,
for the Respondent.
David O. Suetholz, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case was tried in Louisville,
Kentucky, on November 17, 2015. General Drivers, Warehousemen & Helpers Local Union No.
89 (Union) filed the charge on April 21, 2015,1 and the General Counsel issued the complaint on
August 31 and an erratum on September 4. GC Exh. 1(c), (g). The complaint alleges that Jack
Cooper Holdings d/b/a Jack Cooper Transport Co. (Respondent) 2 violated Sections 8(a)(5) and
(1) of the National Labor Relations Act (the Act) by failing and refusing to provide requested
and relevant information to the Union.3 GC Exh. 1(c). Respondent timely filed an answer to the
complaint denying the alleged violation of the Act and asserting several affirmative defenses. GC
Exh. 1(i). The parties were given a full opportunity to participate, to introduce relevant

1 All dates are in 2015 unless otherwise indicated.
2 Respondent Transport and Respondent Holdings will be referred to collectively as “Respondent”
herein.
3 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R. Exh.” for Respondent’s
Exhibit; “CP Exh.” for the Charging Party Union’s Exhibit; “GC Exh.” for General Counsel’s Exhibit;
“R. Br.” for Respondent’s brief; “CP Brief” for the Union’s brief; and “GC Br.” for the General Counsel’s
brief.
JD–07–16
2
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,4 and after considering the briefs
filed by the parties, I make the following
FINDINGS OF FACT5
I. JURISDICTION
Respondent Jack Cooper Holdings (Holdings), a corporation, is engaged in the interstate
transportation of freight from its facility in Kansas City, Missouri, where it annually derives 10
gross revenues in excess of $50,000 as an agent for various common carriers, which operate in
and between various states other than the State of Missouri. Respondent Jack Cooper Transport
Co. (Transport), a corporation, is also engaged in the interstate transportation of freight from its
facility in Louisville, Kentucky, where it annually derives revenues in excess of $50,000 for
services performed in states other than the Commonwealth of Kentucky. The parties have 15
stipulated, and I find, that Respondent Holdings and Respondent Transport are employers
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Respondents have further admitted, and I find, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act. The Union is the largest automobile transport 20
(carhaul) local union in the United States. Fred Zuckerman has served as the Union’s president
since January 2000. Zuckerman also has 35 years of experience as a driver in the carhaul
industry.
II. ALLEGED UNFAIR LABOR PRACTICES25
A. Overview of Respondent’s Operations
Respondent Transport is a controlled subsidiary of Respondent Holdings. Respondent is
engaged in the transportation of automobiles throughout the United States. In Louisville, 30
Kentucky, Respondent serves three automobile plants: Ford Louisville Assembly Plant; GM
Kentucky Truck Plant; and the Bowling Green Corvette Plant. Respondent also serves two
railheads. Curtis Goodwin is the Senior Vice President/Labor Relations for Respondent.
Respondent admits, and I find, that Goodwin is a supervisor of Respondent within the meaning
of Section 2(11) of the Act and an agent of Respondent within the meaning of Section 2(13) of 35
the Act.
Respondent is signatory to the National Master Automobile Transporters Agreement
(NMATA). This agreement is negotiated between the Teamsters National Automobile
Transporters Industry Negotiating Committee (TNATINC)5 and signatory employers. GC Exh. 40
2; R. Exh. 1. Article 33 of NMATA concerns work preservation and outlines a special procedure

4 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.
5 TNATINC negotiates NMATA on behalf of itself and local unions affiliated with the International
Brotherhood of Teamsters.
JD–07–16
3
for filing grievances regarding work preservation. R. Exh. 1. Section 4 of Article 33 of NMATA
concerns information requests made pursuant to work preservation grievances and states, inter
alia:
In the event that a Work Preservation Grievance is submitted, the Employer or 5
Union may request, in writing, specific relevant information, documents or
materials pertaining to such grievance and the other party shall respond to such
request within fifteen (15) days of the receipt of such request.
R. Exh. 1. The NMATA goes on to state that if a party fails to comply with such a request for 10
information, the other party may request a subpoena duces tecum from the Board of Arbitration.
If a party fails to comply with the subpoena duces tecum, the other party may seek enforcement
of the subpoena in federal court pursuant to Section 301 of the Labor-Management Relations Act
of 1947, as amended. A party may also argue that the Board of Arbitration should draw an
adverse inference concerning the subject matter of the information that the other party failed to 15
provide.
Respondent is also signatory to the Jack Cooper Work Preservation Agreement (WPA). GC
Exh. 2. The WPA prohibits Respondent from subcontracting, transferring, or leasing unit work.
The WPA further prohibits Respondent Holdings from permitting any controlled affiliate, other 20
than Respondent Transport, from performing unit work. Moreover, Respondent agreed that it
would not engage in any scheme, transaction, restructuring, or reorganization that permits it or
any controlled affiliate to evade the protection of carhaul work or to assign or permit the
performance or assignment of carhaul work outside the terms of the WPA.
25
On January 19 or 20, the Union learned through one of its members that Respondent may
have been diverting unit work to non-union carriers. Tr. 17; 19. The Union immediately began
investigating the alleged diversion of unit work and reached the conclusion that Respondent had
violated NMATA and the WPA. Tr. 19. Thereafter, the Union filed a grievance against
Respondent for these alleged violations on February 11.6 GC Exh. 3. 30
On February 11, the same day as the Union filed its grievance, Zuckerman sent a letter to
several senior managers of Respondent, including Goodwin. GC Exh. 4. In his letter,
Zuckerman sought various pieces of information, including:
35
(3) The number of employees associated with Jack Cooper Transport that Jack
Cooper Logistics, LLC has utilized since January 1, 2013 to engage in its carhaul
operations;
(4) A list of all trips Jack Cooper Logistics has pulled or leased since January 1,
2013, and the names of the drivers or contractors who pulled those trips; 40
(5) With respect to the request set forth above in Paragraph 4, please provide a
separate list of all trips (including the dates of those trips, along with a complete
account of the vehicles being hauled) Jack Cooper Logistics has pulled or leased
since January 1, 2013, which Jack Cooper Logistics has reason to believe is
bargaining unit work under the NMATA; 45

6 Local unions are permitted to police NMATA and file grievances under NMATA. Tr. 18–19.
JD–07–16
4
(11) Explain whether Jack Cooper Logistics, LLC bid on any new car traffic with
any manufacturer or other entity since they have been in business whether directly
or through Jack Cooper Transport, Jack Cooper Holdings, or any affiliate of Jack
Cooper Holdings;
(12) If Jack Cooper Logistics, LLC has bid on work as outlined in paragraph 11 5
above please identify the new car traffic/manufacturer-entity/locations/dates that
Jack Cooper Logistics, LLC bid whether directly or through Jack Cooper
Transport, Jack Cooper Holdings, or any affiliate of Jack Cooper Holdings;
(13) If Jack Cooper Logistics, LLC has bid on work as outlined in paragraph 11
above and Jack Cooper Logistics, LLC was awarded new car traffic from a 10
manufacturer or other entity please provide copies of the contracts with the
manufacturers or any other entities who awarded the contract. Please redact any
information that is confidential or proprietary;
(15) Does Jack Cooper Transport Company have any Article 2 Section 8
agreements with any Local Union regarding the transportation of used cars, 15
auction cars, secondary market cars, and/or rental cars;
(16) If the answer to number 15 above is “yes”, please provide copies of those
agreements with the approvals from the National Automotive Transporters Joint
Arbitration Committee;
(17) Does Jack Cooper Transport haul used cars, auction cars, secondary market 20
cars, and/or rental cars (now or in the past) not covered by an Article 2 Section 8
Agreement;
(18) If the answer to number 17 above is ‘yes’ please identify the traffic in
question;
(19) Please provide a list of all trips leased by Jack Cooper Logistics, LLC out of 25
the Manheim New Jersey terminal, the name of the company to which the load
was leased and a list of the vehicles transported.
GC Exh. 4.
30
At the hearing, Zuckerman explained the Union’s need for the information sought in his
February 11 letter. The Union sought the information in items 3 and 4 to see if Respondent was,
in fact, diverting unit work to other carriers in violation of NMATA and the WPA. Tr. 20–21. In
addition, the Union required this information to determine which entities were diverting work
and to which entities the work was being diverted. Thus the information sought in items 3 and 4 35
was necessary for the Union to enforce NMATA and the WPA on behalf of its members.
Zuckerman further testified that, based on his 35 years in the industry, this information would be
needed for arbitration of the Union’s grievance. Zuckerman further testified that, based on his
experience as a carhaul driver, Respondent would maintain vehicle transit orders identifying the
drivers or contractors who pulled trips for Respondent. CP. Exh. 1; Tr. 50–51. 40
The information requested in item 5 was also needed for arbitration, according to
Zuckerman. This information would identify wage disparities and standards needed to present
the Union’s grievance to an arbitrator. He testified that this information would further be needed
to refute any argument Respondent might raise as to whether the work in question was covered 45
under the WPA.
JD–07–16
5
Zuckerman further testified that the Union needed the information requested in items 11, 12,
and 13 to prove the Union’s theory that Respondents violated the WPA by diverting new carhaul
work to a non-union carrier to an arbitrator. Tr. 25–26. In item 13, the Union advised
Respondent that it could redact any confidential or proprietary information from its response.
Zuckerman testified that although the Union needed the information it was seeking for 5
arbitration, it did not want confidential or proprietary information. Tr. 26.
Zuckerman requested the information in item 15 to dispute Respondents’ potential argument
that the vehicles listed in item 15 were not covered by the WPA. Tr. 26. Zuckerman explained
that over the years Respondent has taken the position that auction cars, used cars, secondary 10
market cars, and rental cars are not covered under the WPA. The Union wanted to establish that
Respondent has been hauling these types of cars for years and that any position Respondent
might take that these cars were not covered under NMATA and the WPA was wrong. Tr. 26–27.
The Union sought the information in item 16 for the same reasons.
15
In addition, Zukerman testified that Article 2, Section 8 has not always been a part of
NMATA. It was added in 1989 to allow local unions and union companies to negotiate lower
wage rates and remain competitive. Under an Article 2, Section 8 agreement, local unions may,
with the approval of their members, negotiate lower wage rates. Thus, cars may be hauled under
an Article 2, Section 8 agreement or under a full-rate agreement. The Union requested the 20
information in items 17 and 18 to establish whether some of the diverted work had been done
under full-rate agreements. The Union would further need this information to establish at
arbitration that Respondent was diverting unit work in violation of the WPA.
The Union sought the information requested in item 19 because Manheim, New Jersey was 25
the specific location where Respondent had allegedly violated the WPA as alleged in the
grievance. The Union had been made aware by one of its members that Respondent used a
company called Virginia Auto Transport to move traffic from Manheim, New Jersey. Thus, the
Union sought this information to establish how many loads Respondent may have diverted from
union carriers.30
Under NMATA, Respondent had 15 days to respond to the Union’s information request.
Respondent did not reply within 15 days. As of the date of the hearing, Respondent had not
provided the information requested by the Union in Zuckerman’s February 11 letter.
35
On February 27, the parties held a local level hearing via telephone on the Union’s grievance.
Tr. 32. During the hearing, Goodwin stated that Mike Cunningham7 had been in Kansas City in
August to do an audit. Goodwin did not offer any further detail regarding this audit.
On March 3, the Union sent a second information request to Respondent. GC Exh. 5. This 40
second request sought additional information and served to clarify some of the Union’s earlier
information requests. In the March 3 letter, the Union sought:
(2) Any documentation, memorandum or evidence supporting Jack Cooper’s
position that “used car traffic is not considered carhaul work”; 45

7 Cunningham is an economist employed by the International Brotherhood of Teamsters (IBT).
JD–07–16
6
(3) Any audit finding from the International Brotherhood of Teamsters concerning
Jack Cooper Logistics or one of its subsidiaries.
GC Exh. 5.
5
Zuckerman testified that the Union needed the information sought in items 2 and 3 above
based upon Respondent’s position at the local hearing that used car traffic is not considered
carhaul work under the WPA. Tr. 31. The Union was seeking any information Respondent may
have had to rebut Respondent’s theory that what it was doing did not violate NMATA and the
WPA. Regarding the audit, Zuckerman believed that it was important to discover the importance 10
of what Goodwin was talking about during the local hearing in order to properly process the
grievance.
Again, under NMATA, Respondent had 15 days to respond to the Union’s information
requests. As of the date of the hearing, Respondent had not yet provided the information15
requested on March 3.
On March 13, Respondents sent a letter signed by Goodwin to Zuckerman. GC Exh. 6. This
letter indicated that it was a response to the Union’s February 11 information request. In the
letter, Respondent disputed the relevance of the information sought by the Union. Elsewhere the 20
letter stated that Respondent was searching for the information, but was unsure when it would be
able to respond. Respondent also claimed that one of the Union’s requests (item 3) was too
vague or ambiguous for it to formulate a response. The letter did not provide any information
responsive to the Union’s information requests. In addition, Respondent’s March 13 letter
demanded that the Union execute a confidentiality agreement. However, the letter did not 25
provide any such agreement for the Union to sign.
On March 18, Respondent sent a letter to the Union responding to Zuckerman’s March 3
information request. GC. Exh. 7. This letter disputed the relevance of the Union’s request for
information regarding its position that used car work is not carhaul work. Respondent asked the 30
Union to provide it with a “sufficient factual basis” to establish the relevance of this request.
Respondent further stated that the Union’s request for an “audit finding” was too vague and
ambiguous to determine what the Union was seeking. Respondent again demanded that the
Union enter into a confidentiality agreement before it would provide any information regarding
an audit finding. Respondent did not provide any documents or information responsive to the 35
Union’s February 11 or March 3 request.8
On March 26, the Union sent a renewed request for information to Respondent.9 GC Exh. 8.
Zuckerman also responded to the concerns raised by Respondent in its March 13 and 18 letters.
Tr. 39. He indicated that the Union was willing to sign a non-disclosure agreement. He also 40
discussed the relevance of certain information sought. In addition, Zuckerman clarified some of
his earlier requests. He testified that by his use of certain terms (i.e. “trip lease” or “leased”)

8 The remainder of the information requests from March 3 and Respondent’s responses in its March
18 letter are not at issue in this case.
9 The March 26 letter also responded to information requests that had been made by Respondent,
which are not at issue.
JD–07–16
7
Respondent responded that it did not “lease,” and thus was arguing over semantics. Tr. 50.
Therefore, Zuckerman amended his earlier requests to use more modern terms, i.e. “brokered.”
Goodwin sent a response to Zuckerman on April 10. GC Exh. 9. Respondent continued to
object to the relevance of the Union’s requests. Respondent did not provide any documents to 5
the Union regarding the information requests contained in the complaint.10
On April 27, the Union’s attorneys sent a letter to Respondent regarding the information
requests. GC Exh. 10. The letter indicated that the Union had agreed to sign a confidentiality
agreement and that Respondent never provided any of the requested information. 10
Respondent offered as evidence four Memoranda of Agreement between the Union and
Respondent. R. Exhs. 2, 3, 4, 5. These agreements allow for carhaul work to be performed at a
reduced rate under Article 2, Section 8 of NMATA. Respondent’s counsel argued that the Union
did not need copies of Article 2, Section 8 agreements with any other local unions regarding the 15
transportation of used cars, auction cars, secondary market cars, and/or rental cars (item 15 of the
February 11 request) because the Union had 4 such agreements in its possession. Tr. 69–71.
DISCUSSION AND ANALYSIS
20
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 25
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 30
credibility findings are generally incorporated into the findings of fact set forth above.
Only one witness testified at the hearing: Union President Kenneth Zuckerman. Most of
Zuckerman’s testimony concerned the Union’s jurisdiction and the Union’s collective-bargaining
agreements; all topics which fall squarely within his sphere of knowledge as the Union’s 35
president. I found Zuckerman to be a credible witness. His testimony was consistent with the
documentary evidence presented at the hearing and he appeared sure and knowledgeable when
giving his testimony. He testified in a direct and forthright manner and his testimony did not
waver on cross-examination. Therefore, I credit Zuckerman’s testimony.
40

10 The information attached to Respondent’s April 10 letter was related to information requests that
are not at issue in this case.
JD–07–16
8
B. Respondent Violated the Act by Failing and Refusing to Provide Requested
Information to the Union
In its information request, the Union sought information regarding: the number of employees
used by Respondent in its carhaul operation; a list of trips pulled or leased (or brokered or in any 5
way transferred) by Respondent and the names of drivers or contractors who pulled those trips; a
separate list of trips pulled or leased (or brokered or in any way transferred) that Respondent
believes are bargaining unit work under NMATA; whether Respondent Logistics has bid on (or
been awarded any spot buys for) any new car traffic directly or through any affiliate and, if so, a
list of new car traffic bid (or awarded) and copies of the contracts for these bids (or awards) with 10
any confidential or proprietary information redacted; whether Respondent has any Article 2,
Section 8 agreements with any local union regarding the transportation of used cars, auction cars,
secondary market cars, and/or rental cars, and, if so, copies of those agreements; whether
Respondent hauls used cars, auction cars, secondary market cars, and/or rental cars not covered
by an Article 2, Section 8 agreement and, if so, information regarding such traffic; a list of all 15
trips leased by Respondent out of the Manheim, New Jersey terminal, the company to which the
load was leased, and a list of the vehicles transported; any documentation or evidence supporting
Respondent’s position that used car traffic is not carhaul work; and any audit finding from the
IBT concerning Respondent of one of its subsidiaries. GC Exhs. 4; 5; 8.
20
In dealing with a certified or recognized collective-bargaining representative, one of the
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 25
NLRB 1506 (1976). In each case, the inquiry is whether or not both parties meet their duty to
deal in good faith under the particular facts of the case. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956).
The information sought by the Union in this case is not presumptively relevant. When a 30
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). The test for relevancy is
whether the information assists in evaluating the merits of a grievance and the propriety of
pursuing the grievance to arbitration. United Technologies Corp., 274 NLRB 504, 508 (1985). If 35
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). It
is well-settled that an employer may not simply refuse to comply with an ambiguous or overly
broad information request, but must instead request clarification or comply with the request to
the extent it encompasses necessary and relevant information. Id. 40
Processing grievances is, as argued by the General Counsel and the Union, 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 legal standard
concerning just what information must be produced is whether or not there is “a probability that 45
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
JD–07–16
9
NLRB 1128 (1984). The Board uses a broad, discovery-type standard in determining relevance
in information requests and potential or probable relevance is sufficient to give rise to an
employer’s obligation to provide information. Shoppers Food Warehouse, 315 NLRB 258, 259
(1994). The Board, in determining that information is producible, does not pass on the merits of
a grievance underlying an information request. W. L. Molding Co., 272 NLRB 1239 (1984).5
I find that the information sought by the Union is relevant and necessary to its performance
of its duties as the exclusive collective-bargaining representative of its members. As the
exclusive bargaining representative for the unit, the Union had a statutory duty to investigate its
member’s claim that Respondent was violating the terms of NMATA and the WPA. The Board 10
has found that information related to subcontracting of unit work is necessary and relevant to a
union’s function as collective-bargaining agent. Schrock Cabinet Co., 339 NLRB 182, 187
(2003). Similarly, in the instant case, the Union seeks information regarding the alleged
diversion of unit work to non-union carriers. Examining agreements Respondent had with other
carriers and other local unions, lists of trips, and lists of drivers or contractors Respondent used 15
to perform carhaul work would allow the Union to determine Respondent’s compliance or non-
compliance with NMATA and the WPA. Information concerning Respondent’s anticipated
position at arbitration that certain work was not carhaul work, a position it raised at a local
hearing on the grievance, would be relevant to whether or not Respondent violated NMATA and
the WPA. Thus, I find that the information sought by the Union was necessary to ascertain the 20
nature, scope, and extent of the alleged contract violation underlying the Union’s February 11
grievance and was relevant and necessary to its function as collective-bargaining agent.
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 25
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). Respondents elected not to call any witnesses at the trial. It is
well-settled that the statements and arguments of counsel are not evidence. In re Kellogg
Company, 2015 WL 5081426 (2015); see also U.S. v. Fetlow, 21 F.3d 243, 248 (8th Cir. 1994). 30
Thus, Zuckerman’s testimony regarding the relevance of the information sought by the Union
stands unrebutted.
I find that Respondent here failed to timely respond to the Union’s request for information.
Respondent did not reply to the Union’s February 11 request until March 13, almost a full month 35
later. Respondents have a duty to timely respond to information requests, even if they are later
able to provide a justification for not ultimately providing the requested information. Dover
Hospitality Services, Inc., 361 NLRB No. 90, slip op. at 1, fn. 1 (2014), citing Columbia
University, 298 NLRB 941, 945 (1990) (an employer must respond to a union’s request for
relevant information within a reasonable time, either by complying with it or by stating its reason 40
for non-compliance). As of the date of the hearing, 9 months after the Union’s initial
information request, Respondent had not yet provided the requested information. I find this
delay violative of the Act.
I note that Respondent did not argue that the information sought by the Union was 45
confidential or proprietary in its brief, however, the subject of a non-disclosure agreement was
brought up numerous times during the trial. To the extent that Respondent claimed that some of
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10
the information sought was confidential or proprietary in nature, the Board has held that if an
employer is concerned about confidentiality, it cannot simply raise this concern, but must instead
come forward with an offer to accommodate both its concern and bargaining obligation. Tritac
Corp., 286 NLRB 522, 522 (1987).
5
The Board balances a union’s need for information against any legitimate and substantial
confidentiality interest established by the employer. Earthgrains Baking Cos., Inc., 327 NLRB
605, 611 (1999). As part of the balancing process, the party asserting the claim of confidentiality
has the burden of proving that such interests are in fact present and of such significance as to
outweigh the union’s need for the information. Jacksonville Area Assn., 316 NLRB 338, 340 10
(1995). Where the employer fails to demonstrate a legitimate and substantial confidentiality
interest, the union’s right to the information is effectively unchallenged and the employer has a
duty to furnish the information. A-Plus Roofing, 295 NLRB 967, 970 (1989). It was thus
Respondent’s duty, upon asserting its confidentiality concerns, to promptly offer an
accommodation. See The Finley Hospital, 362 NLRB No. 102, slip op. at 11–12 (2015)15
(employer’s failure to offer an accommodation for 2 months found violative of the Act).
I find that Respondent did not satisfy its duty to come forward with an appropriate
accommodation. Respondent presented no evidence at the hearing regarding the alleged
confidential or proprietary nature of the information sought. However, examining the 20
documentary evidence in this case, I find that Respondent asserted confidentiality claims in its
letters of March 13, March 18, and April 10. Respondent did not provide the Union with a
confidentiality agreement to sign until shortly before the hearing. I find that this belated gesture
did not satisfy Respondent’s duty to bargain with the Union in good faith over an appropriate
accommodation. 25
Ultimately, Respondent has failed to elucidate a reason why it should be excused from
providing the information requested by the Union on February 11 and March 3, as modified on
March 26. Respondent’s argument that the Union had certain of the requested information
available to it through other means is without merit. The fact that a union may obtain 30
information by other means or from another source does not alter or diminish the obligation of an
employer to furnish relevant information. Holyoke Water Power Co., 273 NLRB 1369, 1373
(1985). The Union admits that it had certain Article 2, Section 8 agreements in its possession
that would establish that Respondent applied NMATA and the WPA to secondary traffic, rental
and leased vehicles, and auction cars. R. Exhs. 2, 3, 4, 5. However, the Union was not aware of 35
whether other, similar agreements existed. The Union’s request was relevant and necessary both
to rebut a defense Respondent might raise at arbitration, as it did at the local hearing, and to
ascertain the nature and scope of Respondent’s alleged violations of NMATA and the WPA.
Thus, Respondent’s argument that it did not need to provide further Article 2, Section 8
agreements or full-rate agreements because the Union had such agreements in its possession 40
lacks merit.
Respondent cites Detroit Edison Co., 314 NLRB 1273 (1994), for the proposition that,
“information that is not on its face directly related to unit employees must be produced only if
the [u]nion can make a showing of relevance to the collective bargaining process.” R. Br. at p. 45
11. In Detroit Edison Co., the Board overturned a judge’s decision finding that an employer
violated Section 8(a)(5) and (1) of the Act. The Detroit Edison Board noted that the Union was
JD–07–16
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not in the process of processing or formulating any particular grievance at the time of the
information request. 314 NLRB at 1274. Furthermore, the Board in that case noted that the
union did not even suspect that the employer was in violation of any agreements negotiated
between the parties. Id. However, in the instant case, the Union had already filed a grievance
alleging that Respondent violated two agreements at the time of its information requests. Thus, I 5
find this case distinguishable from Detroit Edison Co.
C. Respondent’s Affirmative Defenses Lack Merit
Respondent raised four affirmative defenses in its answer to the complaint. It is well 10
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
Co., 301 NLRB 1173, 1189 (1991).
Respondent first alleged that the complaint failed to state a claim upon which relief could be 15
granted. As found above, the General Counsel has established that Respondents violated Section
8(a)(5) and (1) of the Act and has, therefore, stated a claim upon which relief can be granted.
Moreover, Respondent has cited no authority and presented no evidence in support of this bare
assertion. As such, I find no merit to Respondent’s first affirmative defense.
20
Second, Respondent asserted that the complaint should be dismissed and the matter deferred
to the parties’ grievance-arbitration policy. The Board has long held that deferral is
inappropriate in Section 8(a)(5) information request cases. See e.g. United Technologies Corp.,
274 NLRB 504, 505 (1985); Daimler Chrysler Corp., 331 NLRB 1324, 1324 fn. 2 (2000) enfd.
288 F.3d 434 (D.C. Cir 2002); Chapin Hill at Red Bank, 360 NLRB No. 27, fn. 2 (2014). 25
Respondent has cited no contrary support for this affirmative defense and, as such, I find it is
without merit.
Third, Respondent asserted that the Charging Party’s bargaining representative, TNATINC,
investigated Respondents’ use of Jack Cooper Logistics for brokering used car traffic and found 30
no violation of the parties’ collective-bargaining agreement. Respondent did not produce any
evidence in support of this contention. Moreover, the alleged findings of the Charging Party’s
bargaining representative have no relevance to this proceeding. As such, I find no merit to
Respondent’s third affirmative defense.
35
Finally, Respondent asserted that the complaint was time-barred under Section 10(b) of the
Act. Section 10(b) reads in pertinent part: “Provided . . . no complaint shall issue based upon
any unfair labor practice occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such charge is made . . .”
29 U.S.C. § 160(b). Pursuant to Section 10(b), a violation of the Act cannot be found, “which is 40
inescapably grounded in events predating the limitations period.” Machinists Local 1424 v.
NLRB, 362 U.S. 411, 422 (1960). The evidence at trial established that the charge was filed on
April 20, 2015. GC Exh. 1(a). The evidence further established that the information requests
underlying the charge were made on February 11 and March 3, 2015, within 2 months of the
filing of the charge. GC Exhs. 4; 5. As the uncontroverted evidence established that the 45
information requests were made within 6 months of the filing of the underlying charge, I find
that the charge was not time-barred under Section 10(b) of the Act.
JD–07–16
12
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.
5
CONCLUSIONS OF LAW
By failing and refusing to provide the Union with relevant information as requested in the
Union’s February 11, 2015, and March 3, 2015 letters, and as amended by its March 26, 2015,
letter, Respondent has engaged in unfair labor practices affecting commerce within the meaning 10
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall order 15
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent is hereby ordered bargain with the Union as the exclusive collective-bargaining
representative of all employees in the classification of work covered by the National Master 20
Transporters Agreement, effective June 1, 2011 to August 31, 2015, and Supplements thereto,
but excluding supervisory, managerial, guard, and confidential employees, by providing the
Union with the information it requested on February 11, 2015, and March 3, 2015, and as
modified on March 26, 2015, as set forth in the complaint and erratum: (1) The number of
employees associated with Jack Cooper Transport that Jack Cooper Logistics, LLC has utilized 25
since January 1, 2013, to engage in its carhaul operations; (2) A list of all trips Jack Cooper
Logistics has pulled or leased or brokered or in any way transferred to Jack Cooper Transport
since January 1, 2013, and the names of the drivers or contractors who pulled those trips; (3)
With respect to the request set forth in [number (2)], please provide a separate list of all trips
(including the dates of those trips, along with a complete account of the vehicles being hauled) 30
Jack Cooper Logistics has pulled or leased brokered or in any way transferred to Jack Cooper
Transport since January 1, 2013, which Jack Cooper Logistics has reason to believe is bargaining
unit work under the NMATA; (4) Explain whether Jack Cooper Logistics, LLC bid on any new
car traffic with any manufacturer or other entity or been awarded any spot buys for new car
traffic since they have been in business whether directly or through Jack Cooper Transport, Jack 35
Cooper Holdings, or any affiliate of Jack Cooper Holdings; (5) If Jack Cooper Logistics, LLC
has bid on work as outlined in [number (4)], please identify the new car traffic/manufacturer-
entity/locations/dates that Jack Cooper Logistics, LLC bid whether directly or through Jack
Cooper Transport, Jack Cooper Holdings, or any affiliate of Jack Cooper Holdings or any loads
awarded and any spot buys; (6) If Jack Cooper Logistics, LLC has bid on work as outlined in 40
[number (4)] and Jack Cooper Logistics, LLC was awarded new car traffic from a manufacturer
or other entity please (to include any spot buys for new car traffic) provide copies of the
contracts with the manufacturers or any other entities who awarded the contract. Please redact
any information that is confidential or proprietary; (7) Does Jack Cooper Transport Company
have any Article 2 Section 8 agreements with any local union regarding the transportation of 45
used cars, auction cars, secondary market cars, and/or rental cars; (8) If the answer to [number
(7)] is “yes” please provide copies of those agreements with the approvals from the National
JD–07–16
13
Automotive Transporters Joint Arbitration Committee; (9) Does Jack Cooper Transport haul
used cars, auction cars, secondary market cars, and/or rental cars (now or in the past) not covered
by an Article 2 Section 8 Agreement; (10) If the answer to [number (9)] is “yes” please identify
the traffic in question; (11) Please provide a list of all trips leased by Jack Cooper Logistics, LLC
out of the Manheim, New Jersey terminal, the name of the company to which the load was leased 5
and a list of the vehicles transported; (12) Any documentation, memorandum or evidence
supporting Jack Cooper’s position that “used car traffic is not considered carhaul work” and; (13)
Any audit finding from the International Brotherhood of Teamsters concerning Jack Cooper
Logistics or one of its subsidiaries.
10
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
15
Respondent, Jack Cooper Holdings, Kansas City, Missouri and Jack Cooper Transport Co.,
Louisville, Kentucky, their officers, agents, successors, and assigns, shall
1. Cease and desist from
20
(a) Refusing to bargain with the Union, General Drivers, Warehousemen & Helpers
Local Union No. 89, by 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 classification
of work covered by the National Master Transporters Agreement, effective June 1, 25
2011 to August 31, 2015, and supplements thereto, but excluding supervisory,
managerial, guard, and confidential employees.
(b) In any like or related manner interfering with, restraining, or coercing employees of
the rights guaranteed them by Section 7 of the Act.30
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Furnish the Union with the following information it requested in its February 11,
2015, and March 3, 2015 letters, and as modified in its March 26, 2015 letter: (1) The 35
number of employees associated with Jack Cooper Transport that Jack Cooper
Logistics, LLC has utilized since January 1, 2013, to engage in its carhaul operations;
(2) A list of all trips Jack Cooper Logistics has pulled or leased or brokered or in any
way transferred to Jack Cooper Transport since January 1, 2013, and the names of the
drivers or contractors who pulled those trips; (3) With respect to the request set forth 40
in [number (2)], please provide a separate list of all trips (including the dates of those
trips, along with a complete account of the vehicles being hauled) Jack Cooper
Logistics has pulled or leased brokered or in any way transferred to Jack Cooper

11 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–07–16
14
Transport since January 1, 2013, which Jack Cooper Logistics has reason to believe is
bargaining unit work under the NMATA; (4) Explain whether Jack Cooper Logistics,
LLC bid on any new car traffic with any manufacturer or other entity or been
awarded any spot buys for new car traffic since they have been in business whether
directly or through Jack Cooper Transport, Jack Cooper Holdings, or any affiliate of 5
Jack Cooper Holdings; (5) If Jack Cooper Logistics, LLC has bid on work as outlined
in [number (4)], please identify the new car traffic/manufacturer-
entity/locations/dates that Jack Cooper Logistics, LLC bid whether directly or
through Jack Cooper Transport, Jack Cooper Holdings, or any affiliate of Jack
Cooper Holdings or any loads awarded and any spot buys; (6) If Jack Cooper 10
Logistics, LLC has bid on work as outlined in [number (4)] and Jack Cooper
Logistics, LLC was awarded new car traffic from a manufacturer or other entity
please (to include any spot buys for new car traffic) provide copies of the contracts
with the manufacturers or any other entities who awarded the contract. Please redact
any information that is confidential or proprietary; (7) Does Jack Cooper Transport 15
Company have any Article 2 Section 8 agreements with any local union regarding the
transportation of used cars, auction cars, secondary market cars, and/or rental cars; (8)
If the answer to [number (7)] is “yes” please provide copies of those agreements with
the approvals from the National Automotive Transporters Joint Arbitration
Committee; (9) Does Jack Cooper Transport haul used cars, auction cars, secondary 20
market cars, and/or rental cars (now or in the past) not covered by an Article 2
Section 8 Agreement; (10) If the answer to [number (9)] is “yes” please identify the
traffic in question; (11) Please provide a list of all trips leased by Jack Cooper
Logistics, LLC out of the Manheim, New Jersey terminal, the name of the company
to which the load was leased and a list of the vehicles transported; (12) Any25
documentation, memorandum or evidence supporting Jack Cooper’s position that
“used car traffic is not considered carhaul work” and; (13) Any audit finding from the
International Brotherhood of Teamsters concerning Jack Cooper Logistics or one of
its subsidiaries
30
(b) Within 14 days after service by the Region, post at its facilities in Kansas City,
Missouri, and Louisville, Kentucky, copies of the attached notice marked
“Appendix.”12 Copies of the notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in conspicuous 35
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 40
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

12 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.”
JD–07–16
15
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 11, 2015.
(c) Within 21 days after service by the Region, file with the Regional Director for Region 5
9 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., January 27, 2016
10

___________________________
Melissa M. Olivero15
Administrative Law Judge
1,4,. II 64/J"
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 fail and refuse to bargain collectively with General Drivers, Warehousemen &
Helpers Local Union No. 89, as the exclusive collective bargaining representative of employees
in the Kansas City, Missouri, and Louisville, Kentucky, bargaining units, by refusing to furnish
the Union with requested information that is relevant and necessary to its role as the exclusive
bargaining representative of unit employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
WE WILL furnish the Union with the information it requested on February 11, 2015, and March 3,
2015, as modified on March 26, 2015.
JACK COOPER HOLDINGS D/B/A JACK
COOPER TRANSPORT CO.
(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.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202–3271
(513) 684–3686, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/09-CA-150482
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, (314) 539–7780.