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

National Labor Relations Board - Board Decisions

Dec 15, 2017

365 NLRB No. 163 (N.L.R.B. 2017)

365 NLRB No. 163
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.
Jack Cooper Holdings Corp. d/b/a Jack Cooper
Transport Company, Inc. and International
Brotherhood of Teamsters, General Drivers,
Warehousemen & Helpers Local Union No. 89
(IBT)
Jack Cooper Holdings Corp.; Jack Cooper Special-
ized Transport, Inc.; & Jack Cooper Transport
Company, Inc. and International Brotherhood
of Teamsters, General Drivers, Warehousemen
& Helpers Local Union No. 89 (IBT)
Jack Cooper Transport Company, Inc. and Interna-
tional Brotherhood of Teamsters, General Driv-
ers, Warehousemen & Helpers Local Union No.
89 (IBT). Cases 09–CA–150482, 09–CA–100184,
and 09–CA–101258
December 15, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On January 27, 2016, Administrative Law Judge
Melissa Olivero issued the attached decision1 in Case
09–CA–150482, finding that Respondent Jack Cooper
Holdings Corp. d/b/a Jack Cooper Transport Co. engaged
in certain unfair labor practices. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief. Charging Party Internation-
al Brotherhood of Teamsters, General Drivers, Ware-
housemen & Helpers Local Union No. 89 (IBT) also
filed an answering brief.
On March 11, 2016, the General Counsel filed a Mo-
tion for Default Judgment and a memorandum in support
in Cases 09–CA–100184 and 09–CA–101258. On that
same date, the General Counsel also moved to consoli-
date the Motion for Default Judgment with Case 09–CA–
150482. The allegations in Cases 09–CA–100184 and
09–CA–101258 had initially been resolved when the
parties entered into an informal settlement agreement,
which was approved by the Regional Director for Region
9 on August 19, 2013. After issuance of the judge’s de-
cision in Case 09–CA–150482, the Regional Director set
aside the settlement agreement and issued a consolidated
complaint reviving the allegations in the two prior cases,
and the General Counsel filed the instant Motion for De-
fault Judgment on the grounds that the conduct alleged in

1 We correct the judge’s citation to The Finley Hospital, which is re-
ported at 362 NLRB No. 102 (2015), and observe that the decision was
enforced in relevant part by the Eighth Circuit at 827 F.3d 220 (2016).
Case 09–CA–150482 violated the terms of the settlement
agreement.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We grant the General Counsel’s Motion to Consoli-
date. As explained below, we adopt the judge’s findings
in Case 09–CA–150482, and we find that the violations
in that case warrant default judgment in Cases 09–CA–
100184 and 09–CA–101258 against Respondents Jack
Cooper Holdings Corp. and Jack Cooper Transport Co.
(collectively “Respondent”).2
I. THE ALLEGED POSTSETTLEMENT UNFAIR LABOR
PRACTICES: CASE 09–CA–150482
We have considered the judge’s decision and the rec-
ord in Case 09–CA–150482 in light of the exceptions
and briefs and have decided to affirm the judge’s rulings,
findings,3 and conclusions and to adopt the recommend-
ed Order as modified and set forth in full below.4
As more fully explained in the judge’s decision, this
case arises out of requests for information made by the
Union on February 11, 2015, and March 3, 2015 (and
amended on March 26, 2015). The requests sought in-
formation related to a grievance filed by the Union on
February 11, 2015, which asserted that the Respondent
had diverted work away from the bargaining unit, in vio-
lation of the National Master Automobile Transporters
Agreement (NMATA) and the Jack Cooper Work
Preservation Agreement (WPA).5 As of the time of the
hearing, the Respondent had not provided any of the in-
formation the Union requested.6

2 The Respondent does not except to the judge’s finding that Jack
Cooper Transport is a controlled subsidiary of Jack Cooper Holdings.
Both companies were named as respondents in the 2013 case, but they
are named as a single company in the 2015 case (i.e., Jack Cooper
Holdings Corp d/b/a Jack Cooper Transport Company). Accordingly
we will refer to the Respondent in the singular except in the findings of
fact below, which are based on the 2013 complaint allegations.
3 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 judge’s findings.
4 We will modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language. We will also
substitute a new notice to conform to the Order as modified.
5 The Respondent is signatory to the NMATA, which was negotiated
between the Teamsters National Automobile Transporters Industry
Negotiating Committee and signatory employers. The NMATA in-
cludes work preservation provisions that contractually limit signatory
employers from diverting work to nonunion carriers. The Respondent
is also a signatory to the Jack Cooper WPA, which prohibits Respond-
ent from subcontracting, transferring, or leasing unit work.
6 In communications on March 13 and 18, the Respondent disputed
the relevance of the information requested and demanded that the Un-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 4 of Article 33 of the NMATA, provides:
In the event that a Work Preservation Grievance is
submitted, the Employer or Union may request, in writ-
ing, specific relevant information, documents or mate-
rials pertaining to such grievance and the other party
shall respond to such request within fifteen (15) days of
the receipt of such request.
The NMATA further states that, in the event that one party
fails to comply with a request for information, the other
party may request a subpoena duces tecum from the majori-
ty of the Board of Arbitration requiring that the information
be produced. In the event of noncompliance with the sub-
poena, the NMATA allows the party requesting information
to seek enforcement in federal court pursuant to Section 301
of the Labor-Management Relations Act (LMRA).7
The judge found that the Respondent violated Section
8(a)(5) and (1) by refusing to provide the requested in-
formation. In doing so, she rejected the Respondent’s
argument that the matter should be deferred to arbitra-
tion. As explained more fully below, we decline to defer
this case to arbitration. Instead, we adhere to the Board’s
longstanding policy of nondeferral in information request
cases. See Shaw’s Supermarkets, Inc., 339 NLRB 871,
871 (2003) (citing General Dynamics Corp., 270 NLRB
829, 829, 834–836 (1984)). On the merits, we agree with

ion enter into a confidentiality agreement before the Respondent would
provide information. Although the Union indicated its willingness to
enter into a confidentiality agreement, the Respondent never provided
one. The Union subsequently renewed its requests for information on
March 26, clarifying earlier requests. By letter dated April 10, the
Respondent continued its refusal to provide the information.
7 The parties’ Work Preservation Agreement contains a parallel sec-
tion:
In the event Union submits a grievance involving [Respondent] under
the expedited arbitration procedure established in Article 33, Section 3
[of the NMATA] [Respondent] and Union shall provide all infor-
mation, documents, or materials that are relevant in any way to the
Union’s grievance within fifteen (15) days of the receipt of any writ-
ten request for such information, documents or materials by the Union
or [Respondent]. If, and to the extent that, [Respondent] or the Union
fails or refuses to comply with this request for information, for any
reason, the [Respondent] or the Union may request a subpoena duces
tecum from the majority of the Board of Arbitration requiring that the
information be produced by the [Respondent] or the Union or any
other entity or person. If, and to the extent that the subpoenaed party
fails or refuses to comply with a subpoena issued by the majority of
the Board of Arbitration, the Union or the [Respondent] may seek en-
forcement of the subpoena in federal court pursuant to Section 301 of
the Labor-Management Relations Act of 1947, as amended. If, and to
the extent [Respondent] or Union fails to comply with this provision
for any reason, the Union [or Respondent] may argue that the Board
of Arbitration should draw an adverse inference against [Respondent]
or Union concerning the subject matter of the information that [Re-
spondent] or Union has failed to provide to Union or [Respondent]
within fifteen (15) days.
the judge that the Respondent violated Section 8(a)(5)
and (1).
1. The Board’s Policy of Nondeferral in Information
Request Cases
An employer’s statutory duty to bargain collectively
and in good faith encompasses the duty to furnish, on
request, information relevant to and necessary for its
employees’ exclusive representative to perform its repre-
sentational functions. NLRB v. Acme Industrial Co., 385
U.S. 432, 435–436 (1967); NLRB v. Truitt Mfg. Co., 351
U.S. 149, 151–153 (1956). Pursuant to Section 8(a)(5)
and (1) of the Act, the Board has the authority to find an
unfair labor practice when an employer refuses to pro-
vide such information.8 In determining whether request-
ed information is relevant, the Board employs a broad,
discovery-type standard, requiring only that the request-
ing party show “the probability that the desired infor-
mation is relevant and it would be of use to the union in
carrying out its statutory duties and responsibilities.”
NLRB v. Acme, supra at 437. Relevant information in-
cludes (but is not limited to) information related to actual
or potential grievances.
Congress created the Board as the sole entity charged
with administering the Act and preventing unfair labor
practices. Section 10(a) of the Act states:
The Board is empowered . . . to prevent any person
from engaging in any unfair labor practice [listed in
section 8] affecting commerce. This power shall not be
affected by any other means of adjustment or preven-
tion that has been or may be established by agreement,
law, or otherwise....
29 U.S.C. §160(a) (emphasis added). Thus, Congress em-
powered the Board to protect employees’ statutory rights
and enforce statutory obligations—including the obligation
to provide information—even if other entities might also be
authorized to do so in other proceedings. See Babcock &
Wilcox Construction. Co., Inc., 361 NLRB 1127, 1130
(2014).
Moreover, while the Board has long recognized the
policy favoring voluntary settlement of labor disputes
through arbitral processes, the Board has weighed this
policy against the statutory policy reflected by Congress’
grant to the Board of exclusive jurisdiction to prevent
unfair labor practices. Collyer Insulated Wire, 192
NLRB 837, 840–843 (1971). Similarly, while the Su-

8 Sec. 8(a)(5) of the Act, in relevant part, makes it “an unfair labor
practice for an employer . . . to refuse to bargain collectively with the
representatives of his employees . . . .”
JACK COOPER HOLDINGS CORP. 3
preme Court, in its Steelworkers trilogy,9 noted the im-
portance of deferral to arbitration of labor disputes under
collective-bargaining agreements (where contract inter-
pretation is at issue), the Court has also recognized that
the Steelworkers trilogy did not address whether the
Board should defer information request cases to arbitra-
tion. NLRB v. Acme, 385 U.S. at 436. Thus, the Court in
Acme elaborated:
For those cases [Steelworkers trilogy] dealt with the re-
lationship of courts to arbitrators when an arbitration
award is under review or when the employer’s agree-
ment to arbitrate is in question. The weighing of the
arbitrator’s greater institutional competency, which was
so vital to those decisions, must be evaluated in that
context. . . . The relationship of the Board to the arbi-
tration process is of a quite different order. . . . Moreo-
ver, in assessing the Board’s power to deal with unfair
labor practices, provisions of the Labor Act which do
not apply to the power of the courts under [Section]
301, must be considered.
Id. at 436 (citations and footnotes omitted). The Court in
Acme carefully distinguished prearbitral Board review of
information request cases from arbitral and court review of
the merits of a grievance, explaining that where the Board
orders an employer to furnish information to the union, it is
“not making a binding construction of the labor contract.”
Id. at 437. Accordingly, the Court found that the policies
underlying the Steelworkers trilogy did not require the
Board to defer information request cases to arbitration.
In sum, whether to defer to arbitration is a matter with-
in the Board’s discretion, see id., and the Board has long
adhered to a policy of refusing to defer information-
request allegations.10 As the Court pointed out in NLRB
v. Acme, supra at 438,
Far from intruding upon the preserve of the arbitrator,
the Board’s action was in aid of the arbitral process.
Arbitration can function properly only if the grievance
procedures leading to it can sift out unmeritorious
claims. For if all claims originally initiated as grievanc-
es had to be processed through to arbitration, the sys-
tem would be woefully overburdened.
See also Shaw’s Supermarkets, 339 NLRB at 871,
where the Board explained that its policy of nondeferral
in information request cases “aids the functioning of the

9 Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steel-
workers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960);
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).
10 See also DaimlerChrysler Corp. v. NLRB, 288 F.3d 434, 447
(D.C. Cir. 2002) (noting that the Board’s policy of nondeferral in in-
formation cases is “squarely within the purview of the Board”).
arbitration process, by allowing evaluation of the merits
of the claim before placing the effort and expense of ar-
bitration on the parties, thereby narrowing the issues.”
The Board further noted that nondeferral eliminates the
risk that the Board may ultimately need to consider the
issue in any event (i.e., if the arbitrator declines to decide
the issue). Id. at 871. Applying that policy here, we
agree with the judge’s refusal to defer this case to arbitra-
tion.
2. Application of Section 8(a)(5)
The Union sought information related to a grievance
asserting that the Respondent had employed unauthor-
ized nonunit personnel to perform work covered by the
contract, thereby diverting work away from the bargain-
ing unit, in violation of the NMATA and WPA. While
this information was not presumptively relevant (as it
concerned employees outside of the bargaining unit), we
agree with the judge that the Union showed that the re-
quested information was relevant and necessary to the
Union’s duty to investigate its members’ claims that the
Respondent was violating the terms of the NMATA and
WPA and to determine the nature, scope, and extent of
those alleged violations.11 See United States Postal Ser-
vice, 364 NLRB No. 27, slip op. at 1 (2016) (requested
information was relevant in order for the union to deter-
mine whether it had a right to request bargaining over
outsourcing initiative); Schrock Cabinet Co., 339 NLRB
182, 182 fn. 6 (2003) (union established relevance of its
request for information regarding subcontracting of spec-
ified work to prepare for grievance processing).

11 The Respondent argues that there is no responsive information to
the Union’s requests for information items 11, 12 and 13. Although the
Respondent is not required to produce information that does not exist,
the nonexistence of requested information does not excuse an employer
(or union) from its duty to timely respond to the request, by disclosing
that the information does not exist. See Graymont PA, Inc., 364 NLRB
No. 37, slip op. at 7 (2016) (quoting Endo Painting Service, Inc., 360
NLRB 485, 486 (2014)) (duty to bargain includes the duty “to timely
disclose that requested information does not exist.”). Accordingly, we
reject the Respondent’s defense based on the asserted nonexistence of
the information sought in items 11, 12, and 13 of the Union’s request.
The Respondent also argues that it should be excused from disclos-
ing item 19 of the Union’s request (relating to trips leased out of the
Manheim, New Jersey facility) because it concerned confidential or
proprietary information. The judge found that the Respondent asserted
that claim in its March-April 2015 responses to the request, but that it
offered no evidence at the hearing in support of its confidentiality
claim. The judge also found that although the Union offered to sign a
confidentiality agreement in March 2015, the Respondent made only an
untimely, courthouse-steps offer to bargain with the Union over an
accommodation. In view of the Respondent’s failure of proof and
failure to comply with its duty to seek an accommodation, we adopt the
judge’s order that the Respondent furnish the information.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Response to dissent
After careful consideration, we are not persuaded by
our dissenting colleague’s argument that the Board
should reconsider its well-established nondeferral policy.
First, although the NMATA and WPA provide an ave-
nue for resolution of information request disputes, their
provisions lack the breadth of the statutory obligation
under Section 8(a)(5). An information request under the
Act need not be related to a pending grievance; rather, it
is sufficient that a union requesting information is inves-
tigating whether or not to file a grievance. By contrast,
in order to invoke an Article 33 claim under the
NMATA, a grievance must first be filed. The Respond-
ent is then required to provide any information relevant
to the Union’s grievance. Although the Union did con-
currently file a grievance in this case, the information
sought may be relevant to expanding its grievance be-
yond its stated terms, based on information that only be-
comes available in response to the information request.
The Board’s Section 8(a)(5) standard does not limit the
Union to obtaining information “relevant to the griev-
ance,” but instead permits the Union to obtain infor-
mation that it is potentially relevant and would be of use
to the Union in carrying out its statutory duties. NLRB v.
Acme, supra at 438. Thus, under the Board’s Section
8(a)(5) standard, the Union is entitled to information that
is relevant to potential future grievances as well as in-
formation relevant to the filed grievance. See e.g., Cha-
pin Hill at Red Bank, 360 NLRB 116 (2014). This dis-
parity in the standards of relevance underscores the lim-
ited ability of an arbitrator to review information request
cases in which the information is sought to evaluate po-
tential, rather than existing, grievances.
Second, our dissenting colleague argues that review by
the Board would decrease efficiency by creating a multi-
forum review system—i.e. Board review of the infor-
mation request disputes and later arbitrator review of the
grievance itself. Deferring the information request issue
would not eliminate the two-forum review process, how-
ever. Under the agreement, if the Respondent initially
refuses to provide relevant information, as it did here, the
Union must seek a subpoena. The subpoena can be is-
sued only by a majority of the Board of Arbitration. If
the Respondent still refuses to provide the information,
the Union’s only recourse is to file a federal lawsuit.
Thus, the information request case would be resolved by
a federal court and the merits portion of the case would
remain with the arbitrator. Given that the Respondent
has refused to provide similar information previously,
and has disputed the relevancy of the information here,
we see no reason to assume that deferral would eliminate
the two-tiered process or expedite this case.12
Moreover, as noted above, early Board review can in-
crease efficiency by sifting through and culling out the
issues for speedier resolution by the arbitrator. See Gen-
eral Dynamics, Corp., 268 NLRB 1432, 1432 fn. 2
(1984) (rejecting a two-tiered approach of deferral of
information request issues to arbitrator before the sub-
stantive dispute, noting “[s]uch a two-tiered arbitration
process would not be consistent with our national policy
favoring the voluntary and expeditious resolution of dis-
putes through arbitration”) (citing Safeway Stores, 236
NLRB 1126 fn. 1 (1978); St. Joseph’s Hospital, 233
NLRB 1116 fn. 1 (1977)). See also Shaw’s Supermar-
kets, 339 NLRB at 871 (2003) (“the policy of nondeferral
in information request cases actually aids the functioning
of the arbitration process, by allowing evaluation of the
merits of the claim before placing the effort and expense
of arbitration on the parties”).13
In addition, we disagree with our dissenting col-
league’s view that a case-by-case approach would expe-
dite the processing of deferral cases. Instead, we believe
his approach would likely result in delay as it introduces
an additional issue for resolution in information request
cases. For example, if the parties do not agree that defer-
ral is appropriate, our colleague’s approach would re-
quire the regional director to evaluate “the circumstances
of a particular case,” applying the multi-factor standard
found in Collyer Insulated Wire, 192 NLRB 837 (1971).
If the regional director declines to defer under Collyer
and issues a complaint, delay would result if, after re-
view, the administrative law judge and the Board deter-

12 On August 19, 2013, the parties entered into an informal settle-
ment agreement, settling 8(a)(5) and (1) charges filed against the Re-
spondent. Pursuant to the terms of the settlement agreement, the Re-
spondent agreed, among other things, to refrain from (1) unreasonably
delaying in providing the Union with information that is relevant and
necessary to its role as bargaining representative; (2) refusing to pro-
vide the Union with information that is relevant and necessary to its
role as bargaining representative; and (3) in any like or related manner,
interfering with, restraining, or coerce employees in the exercise of
their Sec. 7 rights. As discussed below, the Respondent’s failure to
provide information in the instant case is grounds for setting aside the
2013 settlement agreement.
13 We do not agree with our dissenting colleague’s view that the
Board’s handling of information request cases “has likely impeded the
expeditious resolution of the parties’ contractual dispute.” Contrary to
his unsupported assertion that “unfair labor practice cases often take
three to five years to be resolved,” the Board’s statistics show that in
fiscal year 2016, 82.7 percent of all meritorious unfair labor practice
cases were resolved and closed within 365 days from filing of the un-
fair labor practice charge, and 70.8 percent were resolved and closed
within 120 days from filing.
As for the dissent’s reference to the length of time this matter has
been pending before the Board, we note this is a case where there is a
divided panel with a lengthy dissent.
JACK COOPER HOLDINGS CORP. 5
mine that the issue should have been deferred. Con-
versely, if the regional director does defer the case to
arbitration, additional delay would result if the regional
director determines after arbitration that deferral to the
award is not warranted and that the complaint should
issue. See Babcock & Wilcox Construction Co., 361
NLRB 1127 (2014) (setting forth the Board’s post-
arbitral review standards). Moreover in this case, the
result of the case-by-case approach for which our col-
league advocates is to send the case back to the adminis-
trative law judge to “perform the requisite analysis,” in-
cluding “reopening the record if necessary,” which
would delay resolution even longer.
We further disagree with the dissent’s view that an ar-
bitrator is in a better position than the Board to determine
what information the requesting party needs. At the ear-
ly stages of investigating a grievance, the information
sought is often of a broader nature than the issue that
ultimately gets submitted to an arbitrator. In evaluating
the extent of the alleged violations, the Union likely has
not conclusively determined the scope of the issue that it
ultimately submits for arbitration.
As to the dissent’s argument that the Board’s involve-
ment in this information case undermines the parties’
contractual provisions for addressing information for
work preservation grievances, we note that the Respond-
ent itself has declined to follow this contractual proce-
dure and has sought Board resolution of information re-
quests it made to the Union pertaining to a work preser-
vation grievance.14 Thus, the parties clearly did not in-
tend that the contractual provision was the exclusive
means for addressing information matters. Further, the
Board has found that even where a collective-bargaining
agreement provides for resolution of information dis-
putes through arbitration, it will not defer. See Chapin
Hill at Red Bank, 360 NLRB at 116 fn. 2 (refusing to
defer information request despite contractual provision
concerning information requests); SBC California, 344
NLRB 243, 245 (2005) (refusing to defer information
request despite explicit contractual provision, noting
“nothing in the instant facts to suggest a basis for ignor-
ing the Board’s policy”).
In sum, we find ample reason to adhere to our policy
of non-deferral in information request cases. According-
ly, we find that the Respondent violated Section 8(a)(5)
and (1) by failing and refusing to provide the Union with
the information it requested.

14 See General Drivers, Warehousemen & Helpers Local Union No.
89, 09–CB–157269, 365 NLRB No. 115 (2017), where the Respondent
filed an unfair labor practice charge alleging that the Union failed to
provide information relating to a work dispute grievance under the
same provision of the same collective-bargaining agreement.
II. THE GENERAL COUNSEL’S MOTION FOR DEFAULT
JUDGMENT: CASES 09-CA-100184 AND 09-CA-101258
Having found that the Respondent committed certain
post-settlement violations, we turn to the General Coun-
sel’s Motion for Default Judgment. Upon charges filed
on March 11 and 31, 2013, the Union and the Respond-
ent entered into an informal settlement agreement, which
was approved by the Regional Director for Region 9 on
August 19, 2013.15 Pursuant to the terms of the settle-
ment agreement, the Respondent agreed, among other
things, to refrain from (1) unreasonably delaying in
providing the Union with information that is relevant and
necessary to its role as bargaining representative; (2)
refusing to provide the Union with information that is
relevant and necessary to its role as bargaining repre-
sentative; and (3) in any like or related manner, interfer-
ing with, restraining, or coerce employees in the exercise
of their Section 7 rights.
The settlement agreement also contained the following
noncompliance provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
reissue the complaint previously issued on June 11,
2013 in the instant case(s). Thereafter, the General
Counsel may file a motion for default judgment with
the Board on the allegations of the complaint. The
Charged Party understands and agrees that the allega-
tions of the aforementioned complaint will be deemed
admitted and its Answer to such complaint will be con-
sidered withdrawn. The only issue that may be raised
before the Board is whether the Charged Party default-
ed on the terms of this Settlement Agreement. . .
On April 20, 2015, the Union filed a charge against the
Respondent in Case 09–CA–150482, alleging that Re-
spondent Jack Cooper Holdings d/b/a Jack Cooper
Transport and Jack Cooper Logistics had been engaging
in unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act, as described above in Section I. On
October 23, 2015, the Regional Director notified the Re-
spondent by letter that, by engaging in the conduct al-

15 The Union also filed unfair labor practice charges on February 14,
2013 (01–CA–098369) and March 26, 2013 (09–CA–101267), but
these charges were later withdrawn or partially dismissed by the Re-
gional Director on May 31, 2013. On June 11, 2013, the Regional
Director issued an order consolidating the remaining charges (Cases
09–CA–100184 and 09–CA–101258) and those charges were the sub-
ject of the informal settlement agreement.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leged in Case 09–CA–150482, the Respondent was in
noncompliance with the settlement agreement. The letter
urged the Respondent to remedy its noncompliance by
providing a proposed second settlement agreement. The
letter further advised the Respondent that, in the event
the Respondent did not remedy its noncompliance, the
Regional Director would reissue the consolidated com-
plaint in Cases 09–CA–100184 and 09–CA–101258 and
commence default judgment proceedings with the Board.
The Respondent did not reply.
On February 7, 2016, the Regional Director issued an
order consolidating cases, consolidated complaint and
notice of hearing against Jack Cooper Holdings Corp.,
Jack Cooper Specialized Transport, Inc., and Jack
Cooper Transport Company, Inc. in Cases 09–CA–
100184 and 09–CA–101258. On March 9, 2016, the
General Counsel filed a motion for default judgment and
supporting memorandum in Cases 09–CA–100184 and
09–CA–101258 and a motion to consolidate the default
judgment motion with Case 09–CA–150482. On March
11, 2016, the Board issued an Order transferring the pro-
ceeding to the Board and Notice to Show Cause why the
motion should not be granted. The Respondent filed a
response opposing the General Counsel’s motion, and the
Charging Party filed a statement in support of the Gen-
eral Counsel’s motion.
Ruling on Motion for Default Judgment
A settlement agreement may be set aside and unfair la-
bor practices found based on presettlement conduct if
“there has been a failure to comply with the provisions of
the settlement agreement or if postsettlement unfair labor
practices are committed.” Nations Rent, Inc., 339 NLRB
830, 831 (2003) (quoting Twin City Concrete, Inc., 317
NLRB 1313, 1313 (1995) (internal cites omitted)).
“[T]he issue of whether to give effect to or rescind a set-
tlement agreement ‘cannot be determined by a mechani-
cal application of rigid a priori rules but must be deter-
mined by the exercise of sound judgment based upon all
the circumstances of each case.’” Id. (quoting Ohio Cal-
cium Co., 34 NLRB 917, 935 (1941), enfd. in part 133
F.2d 721 (6th Cir. 1943)).
In its response to the Notice to Show Cause, the Re-
spondent makes the following arguments: (1) the Re-
gional Director improperly withdrew approval of the
August 19, 2013 informal settlement agreement, as the
cases were closed on compliance by the Regional Direc-
tor on November 13, 2013; (2) the consolidated com-
plaint is time-barred under Section 10(b) of the Act; (3)
the Regional Director’s delay in seeking default judg-
ment and consolidation is an abuse of authority that con-
travenes the purposes of the Act; and (4) default judg-
ment is improper because the settled 2013 cases named a
different entity than the 2015 complaint allegations. We
reject these arguments for the following reasons.
The Respondent asserts that the prior settled cases
were closed after full compliance with the terms of the
settlement. Although the Respondent complied with the
affirmative provisions of the settlement and the cases
were closed, the obligation to refrain from violating the
Act in any “like or related manner” was an ongoing obli-
gation. It is undisputed that the violations found in Case
09–CA–150482 are the same types of violations alleged
in and settled by the 2013 informal settlement.16 Thus,
we find that the Respondent’s refusal to provide the re-
quested information in Case 09–CA–150482 was a viola-
tion of the earlier settlement agreement’s prohibition
against violating the Act in any “like or related manner.”
See ConAgra Foods, Inc., 361 NLRB 944, 948 (2014)
(finding unlawful conduct “like or related to” conduct
specifically prohibited under the settlement agreement
supports finding of default judgment), enfd. in part 813
F.3d 1079 (8th Cir. 2016) (partially reversing Board as to
underlying violation, but not as to broader holding that
such a violation supports default judgment).
Likewise, we find no merit in the Respondent’s asser-
tions that the allegations are time-barred by Section 10(b)
of the Act because the Regional Director reinstated the
charge more than 6 months after the case was closed on
compliance pursuant to the settlement. The Regional
Director has authority to revoke a settlement agreement
beyond the 10(b) period, particularly where, as here, the
subsequent alleged unfair labor practices are contrary to
the remedial provisions of the prior settlement agree-
ment. See YMCA of the Pikes Peak Region, Inc., v.
NLRB, 914 F.2d 1442, 1453 fn. 11 (10th Cir. 1990), cert.
denied 500 U.S. 904 (1991) (citing Hotel & Restaurant
Employees Local 19, 281 NLRB 524 (1986), enfd. 826
F.2d 1070 (9th Cir. 1987)) (where settled charge was
timely filed, Section 10(b) does not prevent the General
Counsel from litigating matters encompassed in a settle-
ment agreement that was set aside beyond the 10(b) peri-
od). Otherwise, there would be little to prevent a party
from breaching a settlement agreement with impunity
once the 6-month period had expired. Id.
In addition, we reject the Respondent’s assertion that
the Regional Director improperly delayed seeking default
judgment and consolidation. The Regional Director act-
ed in a timely manner after the settlement agreement was
breached.

16 Indeed, the Respondent was on notice of the potential relevance of
such information, as both requests stem from the same allegation as had
been made in the prior 2013 case—i.e. that the Respondent violated
Article 33 of the NMATA and the WPA.
JACK COOPER HOLDINGS CORP. 7
Finally, the Respondent asserts that default judgment
is improper because the 2013 case involved information
requests regarding Jack Cooper Specialized Transport,
Inc., a subsidiary of Jack Cooper Holdings Corp. that is
not named in the 2015 case. The Respondent asserts that
Jack Cooper Specialized was dissolved “on or about Feb-
ruary 2014.” Because there are no allegations in the
2015 case that Jack Cooper Specialized violated the Act
(and therefore no basis to find that it defaulted on the
2013 settlement), we will grant the General Counsel’s
motion for default judgment against Jack Cooper Hold-
ings Corp. and Jack Cooper Transport Company, but not
against Jack Cooper Specialized.
In sum, we find that the violation in Case 09–CA–
150482 for failing to provide information requested by
the Union is “like or related” to the allegations at issue in
the 2013 settlement. By entering into the 2013 settle-
ment agreement, the Respondent assumed a continuing
obligation to refrain from refusing to provide relevant
information. But by the actions described above, the
Respondent violated that agreement. Accordingly, we
grant the General Counsel’s Motion for Default Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent Jack Cooper
Holdings Corp. (Holdings) has been a corporation with
an office and place of business in Kansas City, Missouri,
and has been engaged in the business of interstate trans-
portation of freight. In conducting its business opera-
tions during the 12-month period ending January 31,
2016, Respondent Holdings derived gross revenues in
excess of $50,000 for the transportation of freight in in-
terstate commerce under arrangements with and as an
agent for various common carriers which operate be-
tween various states. Based on its operations described
above, Respondent Holdings functions as an essential
link in the transportation of freight in interstate com-
merce.
At all material times the Respondent Jack Cooper
Transport Company (Transport) has been a corporation
with an office and place of business in Louisville, Ken-
tucky and has been engaged in the interstate transporta-
tion of freight. In conducting its operations during the
12-month period ending January 31, 2016, Respondent
Transport performed services valued in excess of
$50,000 in states other than the Commonwealth of Ken-
tucky.
At all material times, the Union, International Brother-
hood of Teamsters, Local Union No. 89, has been a labor
organization within the meaning of Section 2(5) of the
Act.
At all material times, the National Automobile Trans-
porters Labor Division (the Association) has been an
organization composed of various employers in the au-
tomobile transporting industry, one purpose of which is
to represent its employer members in negotiating and
administering collective-bargaining agreements with the
International Brotherhood of Teamsters and its Local
Union affiliates, including the Union.
At all material times, Respondent Holdings and Re-
spondent Transport have been employer-members of the
Association and have authorized the Association to rep-
resent them in negotiations and administering collective-
bargaining agreements with the Union.
We find that the Respondents are employers engaged
in commerce within the meaning of Section 2(2), (6) and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of Respondent Holdings with-
in the meaning of Section 2(11) of the Act and agents of
Respondent Holdings within the meaning of Section
2(13) of the Act:
Robert Griffin—Chief Executive Officer
T. Michael Riggs—Chairman
Curtis Goodwin—Respondent Transport Senior Vice
President Labor Relations
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of Respondent Transport
within the meaning of Section 2(11) of the Act and
agents of Respondent Transport within the meaning of
Section 2(13) of the Act:
Craig Irwin—President
Curtis Goodwin—Senior Vice President Labor
Relations
The following employees of the Respondents (the
Unit) constitute a unit appropriate for the purpose of col-
lective-bargaining within the meaning of Section 9(b) of
the Act:
All truckaway, driveaway, local and other classifica-
tions of employment employed by members of the As-
sociation and of the employers who have authorized the
Association to bargain on their behalf, including Re-
spondents, but excluding supervisory, managerial,
guard, and confidential employees.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since about June 1, 2011, and at all material times, the
Union, International Brotherhood of Teamsters, and its
various other local union affiliates have jointly been the
exclusive collective-bargaining representative of the
Unit. This recognition had been embodied in a collec-
tive–bargaining agreement (The National Master Auto-
mobile Transporters Agreement), which is effective from
June 1, 2011 to August 31, 2015 (the Agreement). At all
material times since June 1, 2011, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the Unit.
The Respondents have engaged in the following con-
duct
1. (a) Since about February 20, 2013, the Union has
requested, in writing, information relevant to the Union’s
performance of its duties as the exclusive collective-
bargaining Representative of the Unit, including:
(1) The names of employees/owner operators of Jack
Cooper Specialized Transport Inc.;
(2) The names of drivers who pulled trips for Jack
Cooper Specialized Transport, Inc. since December 21,
2012;
(3) A copy of all executed Health, Welfare and Pension
benefit fund participation agreements under the
NMATA to which Jack Cooper Specialized is a party;
(4) Current wage rates and benefit packages for IBT
members employed by Jack Cooper Specialized
Transport.
(b) The information requested by the Union, as de-
scribed above in paragraph 1(a), is necessary for, and
relevant to, the Union’s performance of its duties as the
exclusive collective-bargaining representative of the
Unit.
(c) Since about March 7, 2013, Respondent Holdings,
by Curtis Goodwin, in writing, has failed and refused to
furnish the Union with the information requested by it as
described above in paragraph 1(a).
2. (a) Since about February 25, 2013, the Union has
requested, in writing, that Respondent Transport furnish
the Union with the following information:
A list of all loads given by Jack Cooper Transport
Company to Jack Cooper Specialized drivers since
September 8, 2012 until present –broken down by driv-
er, terminal dispatched from, and destination.
(b) From about February 25, 2013 to about April 16,
2013, Respondent Transport unreasonably delayed in
furnishing the Union with the information requested by it
as described above in paragraph 2(a).
3. (a) Since about February 28, 2013, the Union has
requested in writing that Respondent Jack Cooper
Transport furnish the Union with the following infor-
mation:
(1) The used cars/auction cars/secondary market
cars/and/or rental cars that Jack Cooper Transport
hauled prior to June 1, 2008.
(2) The used car/auction car/secondary market
car/and/or rental car traffic not covered by an Article 2
Section 8 agreement that Jack Cooper Transport has
hauled (now or in the past).
(b) The information requested by the Union, as de-
scribed above in paragraph 3(a) is necessary for, and
relevant to, the Union’s performance of its duties as the
exclusive collective-bargaining representative of the
Unit.
(c) Since about March 19, 2013, Respondent
Transport, by Curtis Goodwin, in writing, has failed and
refused to furnish the Union with the information re-
quested by it as described in paragraph 3(a).
CONSOLIDATED CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact and the
entire record in this consolidated case, we amend the
administrative law judge’s conclusions of law consistent
with our findings herein, as follows.
1. The Respondent Jack Cooper Holdings d/b/a Jack
Cooper Transport Co., Inc. violated the terms of the set-
tlement agreement entered into in disposition of Cases
09–CA–100184 and 09–CA–101258, by failing and re-
fusing to provide the Union with relevant information as
requested in the Union’s February 11, 2015 and March 3,
2015 letters (as modified in its March 26, 2015 letter).
Accordingly, the settlement agreement in the above-
captioned cases is vacated and set aside.
2. By the conduct described above in part II, para-
graphs 1-3, the Respondent violated Section 8(a)(5) and
(1) of the Act.
3. The Respondent’s unfair labor practices described
above affected commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent Jack Cooper Hold-
ings d/b/a Jack Cooper Transport engaged in certain un-
fair labor practices, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having found
JACK COOPER HOLDINGS CORP. 9
that the Respondent violated Section 8(a)(5) and (1) by
refusing to provide the Union with requested infor-
mation, we shall order the Respondent to provide all out-
standing information that it unlawfully withheld.17
ORDER
The Respondent, Jack Cooper Holdings, d/b/a Jack
Cooper Transport Co., Kansas City, Missouri, its offic-
ers, agents, successors and assigns shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union,
General Drivers, Warehousemen & Helpers Local Union
No. 89 (the Union), by failing and refusing to furnish it
with requested information that is relevant and necessary
to the Union’s performance of its functions as the collec-
tive-bargaining representative of Respondent’s unit em-
ployees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act,
(a) Furnish to the Union in a timely manner all out-
standing information requested on February 11, 2015,
and March 3, 2015, as modified on March 26, 2015, that
has been unlawfully withheld.
(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 “Appen-
dix.”18 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 places, including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-

17 As the General Counsel concedes that the Respondent has already
complied with the affirmative remedy in the 2013 cases, we do not
order any additional affirmative remedy in those cases.
18 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.”
tice of all current employees and former employees em-
ployed by the Respondent at any time since February 20,
2013.
(c) 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 Respondent has
taken to comply.
Dated, Washington, D.C. December 15, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting.
This proceeding is a bit complicated. For one thing, it
involves a motion for default judgment in two settled
cases (Nos. 09–CA–100184 and 09–CA–101258) (the
Settled Cases). The Settled Cases were followed by the
present case (No. 09–CA–150482), in which the same
employer, Jack Cooper Transport, was found by the
judge—and is today found by my colleagues—to have
violated Section 8(a)(5) of the National Labor Relations
Act (NLRA or Act) by failing to provide requested in-
formation to the Union. However, the present case is
itself complicated because (i) the Union seeks the infor-
mation in order to assist in its pursuit of a pending work-
preservation grievance under the parties’ collective-
bargaining agreement (CBA);1 (ii) the CBA provides for
the work-preservation grievance to be resolved by an
arbitrator; (iii) the CBA imposes its own contractual ob-
ligation on the parties to provide relevant information to
one another regarding any work-preservation grievance;
and (iv) the CBA also contains detailed provisions re-
garding how any request-for-information dispute should
be addressed—specifically, that the requesting party is to
obtain a subpoena from the contractual Board of Arbitra-
tion, and that any failure to comply with the subpoena
may be addressed through subpoena-enforcement pro-
ceedings in federal court pursuant to Section 301 of the

1 Actually, two agreements are relevant to the instant case: the Na-
tional Master Automobile Transporters Agreement (NMATA) and the
Jack Cooper Work Preservation Agreement (WPA). As they pertain to
this case, the NMATA and the WPA contain materially identical lan-
guage. For ease of reference, I refer to them collectively as the CBA.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Labor Management Relations Act. Conspicuously ab-
sent from these detailed contractual provisions, which the
parties themselves agreed upon, is any role for the Na-
tional Labor Relations Board (NLRB or Board).
Given these facts, my colleagues and I have different
views regarding the appropriate manner in which to deal
with the request-for-information claim that has been
brought to the NLRB in the present case (09–CA–
150482). According to the judge, whose decision my
colleagues uphold, the Board must resolve this request-
for-information case, regardless of whatever provisions
may exist in the CBA regarding such disputes, and re-
gardless of CBA provisions that provide for contractual
disputes to be resolved in grievance arbitration. Thus,
my colleagues apply the established Board doctrine that
the Board should never prospectively defer request-for-
information disputes to arbitration. In contrast, my view
is that the Board’s involvement in this case will under-
mine the detailed contractual provisions agreed upon by
the parties that squarely address (i) work-preservation
grievances, (ii) the obligation of the parties to disclose
relevant information regarding such grievances, and (iii)
the manner in which any request-for-information dispute
related to a work-preservation grievance should be re-
solved. Indeed, this case illustrates why I previously
expressed disagreement with the doctrine that the NLRB
should never defer information request disputes to arbi-
tration. In Endo Painting Service,2 I stated that an in-
formation-request dispute may appropriately be deferred
prospectively to arbitration where, for example, the dis-
pute may overlap with issues being arbitrated.3 Indeed,
in General Dynamics4—the leading case for the principle
that information-request disputes should not be prospec-
tively deferred to arbitration—the Board implicitly rec-

2 360 NLRB 485, 485 fn. 6 (2014), enfd. __ Fed. Appx. __, 2017
WL 929208 (9th Cir. Mar. 9, 2017). See also Team Clean, 348 NLRB
1231, 1231 fn. 1 (2005), in which a Board majority questioned continu-
ing to adhere to a policy of nondeferral of information-request cases to
arbitration.
3 The Board’s leading case dealing with prospective deferral to arbi-
tration is Collyer Insulated Wire, 192 NLRB 837 (1971). Other Board
cases address post-award deferral—i.e., deferring to an arbitrator’s
decision after it has issued. Those cases are inapplicable here, and I do
not address them. The Agency determines whether to defer an unfair
labor practice charge to arbitration by applying the factors set forth in
United Technologies Corp., 268 NLRB 557 (1984): (i) whether the
dispute arose within the confines of a long and productive collective-
bargaining relationship; (ii) whether there was a claim of employer
animosity to employees’ exercise of protected rights; (iii) whether the
parties’ contract provides for arbitration in a very broad range of dis-
putes; (iv) whether the arbitration clause clearly encompassed the dis-
pute at issue; (v) whether the employer had asserted its willingness to
utilize arbitration to resolve the dispute; and (vi) whether the dispute
was eminently well suited to resolution by arbitration. Id. at 558.
4 268 NLRB 1432 (1984).
ognized that deferral to arbitration may be appropriate
under certain circumstances.
On the record presently before the Board, I believe one
thing is clear: the Board should respect the parties’ mu-
tual agreement, clearly expressed in the CBA, which may
make it appropriate to defer Case 09–CA–150482 to ar-
bitration. However, the record as it stands does not per-
mit the Board to decide whether it should defer: because
the judge rejected deferral out of hand, she did not con-
duct the multi-factor analysis necessary to determine
whether deferral would be appropriate in this case.5 Ac-
cordingly, I believe the Board should remand this ques-
tion for resolution by the judge.6
Background
As stated above, my colleagues find that the Respond-
ent violated Section 8(a)(5) of the Act by failing to pro-
vide requested information to the Union as alleged in
three unfair labor practice charges. The two Settled Cas-
es were filed in 2013 and were resolved by an informal
settlement agreement. That agreement contained a non-
compliance provision permitting the General Counsel to
move for default judgment on the settled charges if the
Respondent violated the Act “in any like or related man-
ner.” The charge in this case, filed in 2015, alleged that
the “Employer refused to provide relevant information
requested by the Union and needed to ascertain the scope
of the Employer’s breach of the parties [sic] ‘Work
Preservation Agreement.’”
The judge rejected the Respondent’s request that she
defer the information-request dispute to arbitration, and
she found that the Respondent’s failure to provide the
requested information violated Section 8(a)(5). My col-
leagues affirm the judge’s decision, and this has a cas-
cading effect on the Settled Cases. Because the agree-
ment resolving the Settled Cases provided that the Gen-
eral Counsel could issue complaint in those cases and
move for default judgment if the Respondent subsequent-
ly violated the Act in a manner “like or related” to the
allegations in the Settled Cases, my colleagues’ Section
8(a)(5) finding in this case also results in the entry of a
default judgment against the Respondent in the Settled
Cases.
I do not reach the merits of these issues because, in my
view, this case raises an important question about wheth-
er the Board should continue its current policy of nonde-
ferral of information-request disputes in all cases, espe-

5 See supra fn. 3.
6 Because I would remand Case 09–CA–150482 to the judge, I do
not reach or pass on the General Counsel’s motion for default judgment
in the Settled Cases (09-CA-100184 and 09–CA–101258), the merits of
which depend on whether the Respondent committed the 8(a)(5) viola-
tion alleged in Case 09–CA–150482.
JACK COOPER HOLDINGS CORP. 11
cially when refusing to defer would detract from the par-
ties’ contractual grievance arbitration procedures. For
the reasons expressed below, I believe this is a case
where the Board’s resolution of an information-request
dispute would detract from the parties’ contractual pro-
cedures, and I believe these facts warrant overruling the
principle that the Board will never prospectively defer
information-request disputes to arbitration.
The 2015 charge stems from a contractual grievance
alleging that the Respondent had violated the “Work
Preservation Agreement and Article 33 of the NMATA”
entitled “Work Preservation.” (GC Exh. 3.) The same
day the Union filed its work-preservation grievance, it
also sent the Respondent an information request “pursu-
ant to Article 33, Section 4, of the [NMATA].” In its
request, the Union stated that it was requesting infor-
mation in conjunction with its grievance against the Re-
spondent “for violating Article 33 of the [NMATA] and
the Jack Cooper Work Preservation Agreement (WPA).”
(GC Exh. 4.) As the Union’s charge states, the purpose
of the information request was “to ascertain the scope of
the Employer’s breach of the parties ‘Work Preservation
Agreement.’”
When the Union concluded that the Respondent had
inadequately responded to its request for information, it
filed the unfair labor practice charge with the Board. In
doing so, however, the Union bypassed the contractual
procedure spelled out in both the NMATA and the Work
Preservation Agreement for resolving disputes concern-
ing information requested in connection with a work-
preservation grievance. Specifically, NMATA Article
33, “Work Preservation,” contains a section entitled
“Requests for Information.” Article 33 states:
In the event that a Work Preservation Grievance is
submitted, the Employer or Union may request, in writ-
ing, specific relevant information, documents or mate-
rials pertaining to such grievance and the other party
shall respond to such request within fifteen (15) days of
the receipt of such request.
If, and to the extent that, the Employer or the Union
fails or refuses to comply with this request for infor-
mation, for any reason, the Employer or the Union may
request a subpoena duces tecum from the majority of
the Board of Arbitration requiring that the information
be produced by the Employer or the Union or any other
entity or person. If, and to the extent that the subpoe-
naed party fails or refuses to comply with a subpoena
issued by the majority of the Board of Arbitration, the
Union or the Employer may seek enforcement of the
subpoena in federal court pursuant to Section 301 of
the Labor-Management Relations Act of 1947, as
amended.
If, and to the extent that the Employer or the Union
fails to comply with this provision for any reason, the
other party may argue that the Board of Arbitration
should draw an adverse inference concerning the sub-
ject matter of the information that the party failed to
provide the other party within fifteen (15) days.7
The parties’ Work Preservation Agreement contains a
parallel section:
In the event the Union submits a grievance involving
[Respondent] under the expedited arbitration procedure
established in Article 33, Section 3 [of the NMATA]
[Respondent] and Union shall provide all information,
documents, or materials that are relevant in any way to
the Union’s grievance within fifteen (15) days of the
receipt of any written request for such information,
documents or materials by the Union or [Respondent].
If, and to the extent that, [Respondent] or the Union
fails or refuses to comply with this request for infor-
mation, for any reason, the [Respondent] or the Union
may request a subpoena duces tecum from the majority
of the Board of Arbitration requiring that the infor-
mation be produced by the [Respondent] or the Union
or any other entity or person. If, and to the extent that
the subpoenaed party fails to comply with a subpoena
issued by the majority of the Board of Arbitration, the
Union or the [Respondent] may seek enforcement of
the subpoena in federal court pursuant to Section 301
of the Labor-Management Relations Act of 1947, as
amended. If and to the extent [Respondent] or Union
fails to comply with this provision for any reason, the
Union [or Respondent] may argue that the Board of
Arbitration should draw an adverse inference against
[Respondent] or Union concerning the subject matter of
the information that [Respondent] or Union has failed
to provide to Union or [Respondent] within fifteen (15)
days.8
Thus, the NMATA and the Work Preservation Agree-
ment set forth a contractual procedure both for requesting
information in connection with work-preservation griev-
ances and for addressing noncompliance with such re-
quests. The procedure set forth in those agreements in-
volves, at most, two forums: the Board of Arbitration
and federal district court. Alternatively, if the requested
party fails to comply with the contractual procedure for
resolving an information-request dispute, the requesting

7 R. Exh. 1.
8 GC Exh. 2.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
party may argue that the Board of Arbitration should
resolve the dispute by drawing “an adverse inference
concerning the subject matter of the information that the
party failed to provide.” In that case, the information
dispute and the grievance will both be resolved in a sin-
gle forum, i.e., the arbitral forum.
Discussion
The Labor Management Relations Act (LMRA) states
a clear federal policy in favor of resolving industrial dis-
putes through private, collectively bargained procedures:
“Final adjustment by a method agreed upon by the par-
ties is declared to be the desirable method for settlement
of grievance disputes arising over the application or in-
terpretation of an existing collective-bargaining agree-
ment.” LMRA Section 203(d).
The centrality of grievance arbitration to collective
bargaining was recognized by the Supreme Court in its
Steelworkers trilogy,9 where the Court stated that “the
grievance machinery under a collective-bargaining
agreement is at the very heart of the system of industrial
self-government,” and the Court praised that “machin-
ery” as “the means of solving the unforeseeable by mold-
ing a system of private law for all the problems which
may arise and . . . provid[ing] for their solution in a way
which will generally accord with the variant needs and
desires of the parties.” Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. at 581. Indeed, the Court held
that “arbitration of labor disputes under collective bar-
gaining agreements is part and parcel of the collective
bargaining process itself.” Id. at 578. This is a signifi-
cant statement, since the NLRA declares it to be the poli-
cy of the United States to encourage “the practice and
procedure of collective bargaining” in order to eliminate
obstructions to commerce. NLRA Section 1. Thus, to
encourage arbitration is to encourage “the practice and
procedure of collective bargaining” in accordance with
federal policy. Subsequent to issuing the Steelworkers
trilogy, the Supreme Court (quoting with approval from a
Board decision) re-emphasized this point, stating: “‘Ex-
perience has demonstrated that collective-bargaining
agreements that provide for final and binding arbitration
. . . contribute significantly to the attainment of this stat-
utory objective’”—i.e., the objective set forth in Section
1 of the Act. Carey v. Westinghouse Electric Corp., 375
U.S. 261, 271 (1964) (quoting International Harvester
Co., 138 NLRB 923, 926 (1962)). In keeping with the
federal policy in favor of grievance arbitration, the Board
has long favored arbitration as the preferred means of

9 Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steel-
workers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960);
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).
resolving industrial disputes where they are “essentially
. . . dispute[s] over the terms and meaning of the con-
tract.” Collyer Insulated Wire, 192 NLRB at 837. The
Board has recognized that such disputes are better “re-
solved by arbitrators with special skill and experience in
deciding matters under established bargaining relation-
ships than by the application by this Board of a particular
provision of our statute.” Id. at 839.
In the instant case, the parties have entered into two
collective-bargaining agreements, each of which contains
detailed procedures, in connection with work-
preservation grievances, for requesting information and
resolving disputes over those requests. Both agreements
provide that after a work-preservation grievance is sub-
mitted, either party “may request, in writing, specific
relevant information.” If the other party fails to comply
with the information request, the requesting party may
“request a subpoena duces tecum from the majority of
the Board of Arbitration.” If the subpoenaed party still
does not comply, the requesting party may seek en-
forcement of the subpoena in federal court. And if all
else fails, in the grievance arbitration hearing the request-
ing party may “argue that the Board of Arbitration
should draw an adverse inference concerning the subject
matter of the information that the [requested] party failed
to provide.” As these procedures demonstrate, the
NMATA and the Work Preservation Agreement clearly
reflect a considered choice by the parties to a collective-
bargaining relationship to craft “a system of private law”
to resolve both anticipated work-preservation disputes
and disputes over related requests for information.
Steelworkers v. Warrior & Gulf Navigation, 363 U.S. at
581.
Nothing in the Act prohibits the parties from adopting
this approach.10 To the contrary, as explained above,
federal law and federal labor policy alike favor the reso-
lution of industrial disputes through arbitration. None-
theless, the Board has inflexibly refused to prospectively
defer information-request disputes to arbitration. The
leading case in this area is General Dynamics, supra.
In General Dynamics, the employer subcontracted cer-
tain bargaining-unit work to an outside firm after discov-
ering serious defects in a product manufactured by its

10 Although Sec. 10(a) of the Act reserves to the Board the power to
resolve unfair labor practice allegations and provides that “[t]his power
shall not be affected by any other means of adjustment or prevention
that has been or may be established by agreement, law, or otherwise,”
Sec. 10(a) does not mandate that the Board exercise its power in every
case. To the contrary, “‘the Board has considerable discretion to . . .
decline to exercise its authority over alleged unfair labor practices if to
do so will serve the fundamental aims of the Act.’” Carey v. Westing-
house Electric Corp., 375 U.S. at 271 (quoting International Harvester,
138 NLRB at 926).
JACK COOPER HOLDINGS CORP. 13
unit employees. Around the same time, the employer
commissioned a study of the unit employees’ workman-
ship by a professor from the Massachusetts Institute of
Technology. The union requested a copy of the MIT
study for the purpose of determining whether to proceed
with grievances regarding the subcontracting decision.
The employer refused the union’s request. The union
decided to proceed with the grievances anyway and filed
a Board charge to obtain the MIT study. The employer
urged the Board to defer the case to arbitration, but the
Board found deferral inappropriate, explaining as fol-
lows:
[T]he procedural issue of disclosure of the study is
merely preliminary to the resolution of the parties’ sub-
stantive dispute over the subcontracting. In these cir-
cumstances, we find no merit in encumbering the pro-
cess of resolving the pending subcontracting grievances
with the inevitable delays attendant to the filing, pro-
cessing, and submission to arbitration of a new griev-
ance regarding the information request. Such a two-
tiered arbitration process would not be consistent with
our national policy favoring the voluntary and expedi-
tious resolution of disputes through arbitration.
268 NLRB at 1432 fn. 2.
Thus, the rationale for the Board’s decision in General
Dynamics not to defer the information-request dispute at
issue in that case to arbitration was its belief that deferral
would detract from the expeditious resolution of the un-
derlying subcontracting grievance due to “inevitable de-
lays attendant to the filing, processing, and submission to
arbitration” of a second, separate grievance “regarding
the information request.” Id. That rationale does not
apply in the instant case, and I believe it no longer ap-
plies generally. Regarding this case, deferral would not
entail a second, separate grievance. The parties have a
contractual procedure for resolving information-request
disputes in connection with work-preservation grievanc-
es, and that procedure does not require a second griev-
ance to be filed, processed, and submitted to arbitration.
Thus, there is no reason to think that the Union’s work-
preservation grievance would be resolved any less expe-
ditiously if the disposition of the parties’ related infor-
mation dispute were left to their agreed-upon contractual
mechanism. More generally, the Board in General Dy-
namics disregarded the fact that nondeferral also results
in a “two-tiered” process, with the substantive grievance
decided by the arbitrator and the information dispute
decided by the Board. And whereas a “two-tiered arbi-
tration process” is limited to a single forum—the arbitral
forum—the two-tiered process resulting from nondefer-
ral involves at least two forums—the arbitral forum and
the Board—and two forums become three if appeal is
taken from the Board’s order to a federal court of ap-
peals.
I share the goal the Board expressed in General Dy-
namics of seeking to ensure the expeditious resolution of
grievances in arbitration. However, the Board’s holding
in General Dynamics was paradoxical—to further the
“national policy” favoring arbitration, the Board refused
to defer the case to arbitration—and this holding produc-
es an incongruous outcome in the present case. Here as
in General Dynamics, my colleagues ostensibly advance
the “national policy” favoring arbitration by refusing to
defer to the mutual agreement of the parties reflected in
CBA provisions that impose a contractual obligation on
the parties to disclose relevant information pertaining to
work-preservation grievances, and that provide for the
resolution of information-request disputes pursuant to
procedures that do not involve the NLRB. In my view,
this outcome cannot be reconciled with the federal policy
in favor of arbitration when it has been agreed upon by
the parties as the means of resolving certain disputes.
It is also important to recognize that the Board’s in-
volvement in the instant case has likely impeded the ex-
peditious resolution of the parties’ contractual dispute.
Perhaps in 1984, when General Dynamics was decided,
it was true that grievances typically would be resolved
more quickly if the union obtained information relevant
to the grievance through the Board’s processes rather
than through contractual procedures. At present, howev-
er, unfair labor practice cases can take 3 to 5 years to be
resolved, and sometimes they take much longer.11 If the
Board’s recent experience is any indication, efforts to
resolve any information dispute in Board proceedings is
far more likely to delay the resolution of the grievance
than to expedite it.
Consider what an unfair labor practice proceeding en-
tails. It commences with the filing of a charge in one of
the Board’s regional offices. The charge is investigated.
The investigation may involve subpoenas, and disputes
over subpoena enforcement may have to be decided by
the Board. If after investigation the charge is deemed
meritorious, complaint issues, followed by a hearing be-
fore an administrative law judge. After the hearing, the
parties file posthearing briefs to the judge. The judge
must then write a decision, and the judge’s decision is
subject to “exceptions.” In other words, it may be ap-
pealed to the Board. If exceptions are filed, further brief-

11 See, e.g., CNN America, Inc., 361 NLRB 439 (2014) (involving
82 days of hearings, more than 1,300 exhibits, more than 16,000 pages
of transcript, and more than 10 years of Board litigation, followed by
court proceedings), enfd. in part and enf. denied in part No. 15-1112,
2017 WL 3318834 (D.C. Cir. Aug. 4, 2017).
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing ensues, and the case is processed at the Board’s
headquarters in Washington, D.C. Board members may
disagree with one another regarding one or more issues,
or they may agree on the result but disagree as to the
rationale for the result, in which case both a majority
opinion and one or more dissenting and/or concurring
opinions must be written before the Board’s decision
issues. In all this, one thing is certain: this process takes
time—often, a great deal of time.
Nor are the delays associated with Board resolution of
information-request disputes merely hypothetical. Con-
sider the timeline of this case. The Union requested the
information on February 11, 2015. It filed an unfair la-
bor practice charge on April 20, 2015, and complaint
issued August 31, 2015. The judge issued a 15-page
decision on January 27, 2016. The Board issues its deci-
sion today, roughly 2 years after the complaint issued
and well over 2 years after the charge was filed. And this
may not be the end. The Respondent may decide to file a
petition for review in a federal court of appeals. If that
happens, there will be more briefing, the court may order
oral argument, and the court will have to write yet anoth-
er decision. Given the delays inherent in the processing
and resolution of unfair labor practices, it seems to me
that information disputes would typically be resolved
more quickly by letting the arbitrator address them. That
is especially true where, as in this case, the parties’
agreement sets forth a procedure for requesting infor-
mation and for resolving disputes regarding such re-
quests.12

12 My colleagues cite statistics showing that in fiscal year 2016, 82.7
percent of all meritorious unfair labor practice cases were resolved
within 365 days of the filing of the charge, and 70.8 percent of all meri-
torious unfair labor practice cases were resolved within 120 days of
charge filing. These statistics need to be placed in context. First, a
“meritorious” unfair labor practice case means only that the Region
decided to issue complaint alleging one or more unfair labor practices.
It does not mean that the Board, or a reviewing court, found one or
more allegations to have merit. Also, “meritorious” cases may be and
are resolved in a variety of ways, including through default judgment
when the respondent fails to file an answer and through voluntary set-
tlement. Indeed, the statistics cited by my colleagues dwindle to insig-
nificance when one adds that in fiscal year 2016, 93 percent of merito-
rious unfair labor practice cases were resolved by settlement.
My colleagues’ argument that permitting deferral of information-
request disputes to arbitration would result in delays is unpersuasive.
First, they say that delay would result from the regional director having
to apply the Collyer factors to determine whether deferral of particular
information-request disputes is appropriate. Should the Board change
its policy and allow information-request disputes to be deferred to
arbitration under Collyer, the regional directors would make those
decisions, just as they make Collyer deferral decisions in other types of
cases—before complaint ever issues, and promptly after the filing of
the charge. This prompt determination is surely more expeditious than
the process of litigating an unfair labor charge from initial filing to
ultimate resolution by the Board or perhaps even a circuit court. My
It again bears emphasis that arbitration is the preferred
means of resolving industrial disputes as a matter of fed-
eral policy as reflected in LMRA Section 203(d), which
provides that “[f]inal adjustment by a method agreed
upon by the parties is declared to be the desirable method
for settlement of grievance disputes arising over the ap-
plication or interpretation of an existing collective-
bargaining agreement.” Not a desirable method. The
desirable method. Furthermore, Section 203(d) does not
say that adjustment by a method agreed upon by the par-
ties is the desirable method for resolving grievances un-
less they can be resolved more quickly by a different
method. Rather, Section 203(d) states a categorical pref-
erence for collectively bargained methods of grievance
processing. These considerations weigh in favor of de-
ferring information-request disputes to arbitration, par-
ticularly where the requested information relates to an
ongoing grievance. On the other hand, I agree that in
some circumstances, Board resolution of an information-
request dispute promotes and preserves the integrity of
grievance arbitration—for example, when a party seeks
relevant information to assess whether to initiate contrac-
tual grievance or arbitration procedures in the first place.
However, such concerns are clearly not implicated in the
present case.
Here, I believe it is far more likely that the federal pol-
icy embodied in LMRA Section 203(d) would be more
effectively promoted under a doctrine that permits in-
formation-request disputes to be deferred to arbitration.
As I stated in Endo Painting Service, citing LMRA Sec.
203(d), deferring an information-request dispute to arbi-
tration is appropriate where “nondeferral would result in
duplicative litigation that undermines the role played by
arbitration as the method agreed upon by the parties for
the final adjustment of disputes involving interpretation
of collective-bargaining agreements.” 360 NLRB at 485
fn. 6. Under the procedure set forth in the CBA, both the
grievance and the information-request dispute may be
resolved in a single forum—the arbitral forum. That is
what happens if a requested party fails to comply with
the contractual procedure regarding requested infor-
mation: the arbitrator may resolve the information dis-
pute by drawing an adverse inference against the re-
quested party “concerning the subject matter of the in-
formation that the party failed to provide.” Otherwise,

colleagues also point to the delay that would result in this case if the
case were remanded to the judge to perform the necessary Collyer
analysis. But if my position were accepted, this would be the only case
where such a remand is necessary, since the Board’s judges would
perform the analysis on the first go-round (in the relatively rare in-
stances when a Collyer deferral issue even reaches an administrative
law judge).
JACK COOPER HOLDINGS CORP. 15
deferral would mean that two forums would be involved:
the arbitral forum for the grievance, and federal district
court for the information dispute. In contrast, following
the existing policy of nondeferral guarantees that at least
two forums are required: the Board to resolve the infor-
mation dispute, and the arbitrator to resolve the work-
preservation grievance. Furthermore, adding the Board
to the mix does not promise a speedier resolution, since
the Board’s processes are complex and time-consuming,
as explained above—and if appeal is taken from the
Board’s decision to a federal court of appeals, two fo-
rums will become three.13 Moreover, I also believe that
arbitrators are generally in a better position than the
Board to determine what information a requesting party
needs, given the close connection between that issue and
the merits of the grievance itself, which the arbitrator
must resolve, not the Board. As I also stated in Endo
Painting Service, deferring an information-request dis-
pute to arbitration is appropriate where “the scope of an
information request would be significantly affected by
the merits of a particular grievance pending arbitration.”
Id.
In sum, although the assumption of General Dynamics
was that nondeferral would result in a speedy disposition
of the information dispute and thus a speedier resolution
of the related substantive grievance than would deferral
and a “two-tiered” arbitration process, “[e]xperience has
demonstrated” that the opposite is true. Collyer, 192
NLRB at 837. Arbitration is intended to be, and usually
is, a more efficient means of resolving disputes than
more formal legal processes such as the Board’s; indeed,
this is one of arbitration’s key selling points. According-
ly, in order to be true to the intent of General Dynamics
to further the “national policy favoring the voluntary and
expeditious resolution of disputes through arbitration,”
General Dynamics, 268 NLRB at 1432 fn. 2, I believe
the Board should abandon its policy of nondeferral of
information-request disputes.14 Moreover, even where
nondeferral of an information dispute would lead to as
quick a resolution of the underlying grievance as would
deferral, the balance must tip in favor of deferral in order
to leave the dispute to be resolved in accordance with the

13 My colleagues point out that deferral here could also involve two
forums, the arbitrator and a federal court. I do not dispute the point.
The fact remains, however, that my colleagues defend a blanket rule of
nondeferral that guarantees the involvement of at least two forums and
potentially a third, whereas deferral in this case would involve at most
two forums.
14 As my colleagues admit, “whether to defer to arbitration is a mat-
ter within the Board’s discretion.”
procedure “agreed upon by the parties.” LMRA Section
203(d).15
To be clear, I am not proposing that the Board replace
its blanket rule that it will never defer an information-
request dispute to arbitration with an equally broad and
inflexible rule that would result in deferring all such dis-
putes to arbitration. Rather, I support the common-sense
proposition that the applicable standard should be flexi-
ble enough to permit the Board to decide whether the
circumstances of a particular case make deferral appro-
priate.16 My colleagues, on the other hand, defend the
existing inflexible rule, which puts a straitjacket on the
Board in all cases, regardless of specific facts that, if
considered, may strongly favor deferral to arbitration.
Additionally, my colleagues’ arguments do not add up
to a rational defense of the extant blanket prohibition of
deferral.
For starters, my colleagues defend the current rule
against ever deferring an information-request dispute to
arbitration on the basis that the Act creates a broader
obligation to furnish requested information than is creat-
ed by the CBA in this case. That is, under the parties’
CBA, the procedure for obtaining relevant requested in-
formation is triggered by the filing of a grievance,
whereas under the Act, a party can request information to
determine whether to file a grievance. Based on this
distinction, one might reasonably argue that, in a particu-
lar case involving this type of CBA provision, if the par-
ty has requested information to determine whether to file
a grievance, deferral of an information-request dispute
might be inappropriate. However, the possibility that
such facts might weigh against deferral in a particular
case does not justify nondeferral of information-request
disputes in all cases, nor do the facts support nondeferral
in this case. Here, for example, my colleagues’ argument
is irrelevant, since the Union did file a grievance. Thus,
although the broader right of access to information inher-
ent in Section 8(a)(5) may counsel nondeferral of infor-
mation disputes in certain cases, it does not support the
Board’s blanket rule prohibiting deferral in all cases.

15 If a deferred 8(a)(5) charge were not being addressed within the
parties’ contractual mechanism within a reasonable period of time, the
Board might appropriately accord greater weight to the policies under-
lying Section 10(a) of the Act and resume processing the charge.
Again, NLRA Sec. 10(a) relevantly provides that the Board’s power to
resolve unfair labor practice allegations “shall not be affected by any
other means of adjustment or prevention that has been or may be estab-
lished by agreement, law, or otherwise.”
16 As my colleagues correctly note, should the Board change its non-
deferral policy, prearbitral deferral decisions in particular cases would
mostly be made by the regional directors, not by the Board itself. See
fn. 12, supra.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
My colleagues also defend a blanket rule of nondefer-
ral in all information-request cases by disputing my point
that in some cases, including this one, the arbitrator is in
a better position than the Board to adjudicate the infor-
mation-request dispute. Again, this argument does not
support a blanket prohibition against deferral of infor-
mation-request disputes. My colleagues state that “[a]t
the early stages of investigating a grievance, the infor-
mation sought is often of a broader nature than the issue
that ultimately gets submitted to an arbitrator,” and “the
Union likely has not conclusively determined the scope
of the issue that it ultimately submits for arbitration.”
Even if these statements apply in a particular case, it
does not follow that the Board is always better suited
than an arbitrator to resolve the parties’ information-
request dispute. For example, in the instant case, it ap-
pears that the Union understood the scope of the underly-
ing work-preservation issue that was addressed in the
Union’s grievance. But even if the Union requested in-
formation in order to evaluate the contours of its griev-
ance, it is unreasonable to conclude that the Board will
always be better positioned to resolve such disputes than
an arbitrator. Indeed, considering that the parties in this
case have an agreement devoted exclusively to one spe-
cific type of grievance—i.e., work-preservation griev-
ances—it is highly likely that the Board of Arbitration
referred to in the CBA has dealt with work-preservation
grievances before and with related information-request
disputes. A more flexible deferral standard would permit
the Board to take such experience and expertise into ac-
count. The Board’s blanket rule of nondeferral precludes
any evaluation of such considerations.
Finally, my colleagues support the blanket nondeferral
standard by relying on NLRB v. Acme Industrial Co., 385
U.S. 432 (1967). But Acme Industrial does not support a
blanket rule under which the Board can never defer any
information-request dispute to arbitration.
First, instead of dealing with the proposition defended
by my colleagues—that the Board must decide all infor-
mation-request disputes—Acme Industrial dealt with the
opposite question: whether the Board could ever decide
such disputes when the parties have agreed to grievance
arbitration. In Acme Industrial, the Supreme Court re-
viewed a Seventh Circuit decision finding that the Board
was “foreclosed” from deciding information-request dis-
putes whenever a CBA contained “a provision for bind-
ing arbitration.”17 The Supreme Court held that the
Board was permitted to decide disputes over information
requests, even when the CBA contained a grievance arbi-
tration procedure, but the Supreme Court certainly did

17 385 U.S. at 435.
not find that the Board could never defer such disputes to
arbitration.18 I do not argue anything like the position
that the Supreme Court rejected in Acme Industrial. That
is, I do not contend that the Board is prohibited from
deciding information-request disputes when the parties’
CBA provides for grievance arbitration. Again, I merely
maintain that a reasonable standard should permit the
Board to decide whether it may be appropriate, in partic-
ular cases, to defer an information-request dispute to
arbitration.
Second, the collective-bargaining agreement in Acme
Industrial was materially different from the parties’ CBA
here. The agreement at issue in Acme Industrial set forth
a generic grievance-arbitration procedure—not, as here, a
specific procedure for resolving information-request dis-
putes related to a particular type of grievance. Indeed,
the Board, when deciding Acme Industrial, observed that
“the contract does not contain a clause dealing specifi-
cally with the furnishing of information necessary and
relevant to the processing of grievances.” Acme Indus-
trial Co., 150 NLRB 1463, 1465 (1965) (emphasis add-
ed). In the instant case, in contrast, the parties’ contract
does contain a clause “dealing specifically with the fur-
nishing of information necessary and relevant to the pro-
cessing of grievances.” Id. Moreover, I am not claiming
that this type of clause always warrants deferral. I claim
only that it is unreasonable to adhere to a standard that
prevents the Board from even considering this type of
contract clause when deciding whether to defer certain
types of information-request disputes to arbitration, par-
ticularly when other facts may likewise warrant deferral.
One final consideration strongly undermines the
Board’s current standard. In the instant case, the parties
mutually agreed to CBA provisions relating to the arbi-
tration of information-request disputes pertaining to
work-preservation grievances. The Board has a duty “to
encourage the practice and procedure of collective bar-
gaining,”19 and this duty requires the Board to at least
permit an information-request dispute to be resolved in
arbitration when parties have agreed to do so. I do not
see how it furthers the purposes of the Act to bypass the
parties’ own agreement. To the contrary, deferral in this
case effectuates the purposes of the Act by furthering the
“arbitration of labor disputes,” which is “part and parcel
of the collective bargaining process itself.”20 Steelwork-
ers v. Warrior & Gulf Navigation Co., 363 U.S. at 578.21

18 Id. at 437.
19 NLRA Sec. 1.
20 Unlike my colleagues, I find it immaterial that the Respondent has
also filed an unfair labor practice charge seeking resolution of its own
request for information. That both parties have disregarded the con-
tractual procedure to which they agreed does not warrant nondeferral to
JACK COOPER HOLDINGS CORP. 17
CONCLUSION
Consistent with the above analysis, I believe the Board
should consider deferring the Section 8(a)(5) allegation
in the instant case to arbitration. However, under the
Board’s traditional approach to deferral, there must be
further analysis before a determination may be made that
deferral is appropriate.22 Thus, I would remand to the
judge to perform the requisite analysis, reopening the
record if necessary to receive additional relevant evi-
dence.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. December 15, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated 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 bene-
fit and protection

that procedure. Moreover, the Respondent urged the Board to defer
this case.
21 In Steelworkers v. Warrior & Gulf Navigation Co., supra, the Su-
preme Court reasoned that when evaluating arbitrability, courts “must
be strictly confined to the question whether the reluctant party did agree
to arbitrate the grievance or did agree to give the arbitrator power to
make the award he made. An order to arbitrate the particular grievance
should not be denied unless it may be said with positive assurance that
the arbitration clause is not susceptible of an interpretation that covers
the asserted dispute. Doubts should be resolved in favor of coverage.”
363 U.S. at 582–583. Although Warrior & Gulf involved questions
about arbitrability arising in court proceedings alleging breach of a
collective-bargaining agreement, I believe there is no reasonable basis
for the Board to disregard the parties’ own language governing arbitra-
bility by applying a standard that does not permit the Board to even
consider such language when evaluating deferral of information-request
disputes to arbitration.
22 See the factors set forth in fn. 3, supra.
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with Gen-
eral Drivers, Warehousemen & Helpers Local Union No.
89 (the Union), by failing and refusing to furnish the
Union with requested information that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of Respondent’s
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 to the Union in a timely manner all
outstanding information requested on February 11, 2015,
and March 3, 2015, as modified on March 26, 2015, that
has been unlawfully withheld.
JACK COOPER HOLDINGS D/B/A JACK COOPER
TRANSPORT CO.
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.
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. (Re-

1 All dates are in 2015 unless otherwise indicated.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent)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 evidence,
to examine and cross-examine witnesses, and to file briefs. On
the entire record, including my own observation of the de-
meanor of the witnesses,4 and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
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
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 Com-
monwealth of Kentucky. The parties have 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
(carhaul) local union in the United States. Fred Zuckerman has
served as the Union’s president since January 2000. Zucker-
man also has 35 years of experience as a driver in the carhaul
industry.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operations
Respondent Transport is a controlled subsidiary of Respond-
ent Holdings. Respondent is engaged in the transportation of
automobiles throughout the United States. In Louisville, Ken-
tucky, Respondent serves three automobile plants: Ford Louis-
ville 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

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 tran-
script; “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.
4 Although I have included citations to the record to highlight partic-
ular 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.
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 the Act.
Respondent is signatory to the National Master Automobile
Transporters Agreement (NMATA). This agreement is negoti-
ated between the Teamsters National Automobile Transporters
Industry Negotiating Committee (TNATINC)5 and signatory
employers. (GC Exh. 2; R. Exh. 1.) Article 33 of NMATA
concerns work preservation and outlines a special procedure for
filing grievances regarding work preservation. (R. Exh. 1.)
Section 4 of Article 33 of NMATA concerns information re-
quests made pursuant to work preservation grievances and
states, inter alia:
In the event that a Work Preservation Grievance is submitted,
the Employer or Union may request, in writing, specific rele-
vant 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 information, the other party
may request a subpoena duces tecum from the Board of Arbi-
tration. If a party fails to comply with the subpoena duces te-
cum, 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 provide.
Respondent is also signatory to the Jack Cooper Work
Preservation Agreement (WPA). (GC Exh. 2.) The WPA pro-
hibits Respondent from subcontracting, transferring, or leasing
unit work. The WPA further prohibits Respondent Holdings
from permitting any controlled affiliate, other 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.
On January 19 or 20, the Union learned through one of its
members that Respondent may have been diverting unit work to
nonunion 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.)
On February 11, the same day as the Union filed its griev-
ance, 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:

5 TNATINC negotiates NMATA on behalf of itself and local unions
affiliated with the International Brotherhood of Teamsters.
6 Local unions are permitted to police NMATA and file grievances
under NMATA. Tr. 18–19.
JACK COOPER HOLDINGS CORP. 19
(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;
(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 be-
ing 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;
(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 out-
lined in paragraph 11 above please identify the new car traf-
fic/manufacturer-entity/locations/dates that Jack Cooper Lo-
gistics, 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 out-
lined in paragraph 11 above and Jack Cooper Logistics, LLC
was awarded new car traffic from a manufacturer or other en-
tity please provide copies of the contracts with the manufac-
turers 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, auction cars, secondary market
cars, and/or rental cars;
(16) If the answer to number 15 above is “yes”, please pro-
vide copies of those agreements with the approvals from the
National Automotive Transporters Joint Arbitration Commit-
tee;
(17) 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;
(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 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.)
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 di-
verting work and to which entities the work was being diverted.
Thus the information sought in items 3 and 4 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 testi-
fied that, based on his experience as a carhaul driver, Respond-
ent would maintain vehicle transit orders identifying the drivers
or contractors who pulled trips for Respondent. (CP Exh. 1; Tr.
50–51.)
The information requested in item 5 was also needed for ar-
bitration, 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 infor-
mation would further be needed to refute any argument Re-
spondent might raise as to whether the work in question was
covered under the WPA.
Zuckerman further testified that the Union needed the infor-
mation 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 nonunion 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 re-
sponse. Zuckerman testified that although the Union needed
the information it was seeking for 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 ex-
plained that over the years Respondent has taken the position
that auction cars, used cars, secondary 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.
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, Sec-
tion 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 information in items
17 and 18 to establish whether some of the diverted work had
been done under full-rate agreements. The Union would fur-
ther need this information to establish at arbitration that Re-
spondent was diverting unit work in violation of the WPA.
The Union sought the information requested in item 19 be-
cause Manheim, New Jersey was 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.
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 Zucker-
man’s February 11 letter.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On February 27, the parties held a local level hearing via tel-
ephone 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 fur-
ther detail regarding this audit.
On March 3, the Union sent a second information request to
Respondent.( GC Exh. 5.) This second request sought addi-
tional 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”;
(3) Any audit finding from the International Brotherhood of
Teamsters concerning Jack Cooper Logistics or one of its
subsidiaries.
(GC Exh. 5.)
Zuckerman testified that the Union needed the information
sought in items 2 and 3 above based upon Respondent’s posi-
tion 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 Respond-
ent’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 of what Goodwin was
talking about during the local hearing in order to properly pro-
cess the grievance.
Again, under NMATA, Respondent had 15 days to respond
to the Union’s information requests. As of the date of the hear-
ing, Respondent had not yet provided the information 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 letter stated that Respond-
ent 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 infor-
mation responsive to the Union’s information requests. In ad-
dition, Respondent’s March 13 letter demanded that the Union
execute a confidentiality agreement. However, the letter did
not provide any such agreement for the Union to sign.
On March 18, Respondent sent a letter to the Union respond-
ing 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 Union to provide it with a
“sufficient factual basis” to establish the relevance of this re-
quest. 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

7 Cunningham is an economist employed by the International Broth-
erhood of Teamsters (IBT).
provide any information regarding an audit finding. Respond-
ent did not provide any documents or information responsive to
the Union’s February 11 or March 3 request.8
On March 26, the Union sent a renewed request for infor-
mation to Respondent.9 (GC Exh. 8.) Zuckerman also respond-
ed 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 nondisclosure agreement. He also 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”) Respondent re-
sponded that it did not “lease,” and thus was arguing over se-
mantics. (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 the Union regarding the information requests contained in
the complaint.10
On April 27, the Union’s attorneys sent a letter to Respond-
ent regarding the information requests. (GC Exh. 10.) The
letter indicated that the Union had agreed to sign a confidential-
ity agreement and that Respondent never provided any of the
requested information.
Respondent offered as evidence four Memoranda of Agree-
ment 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. Respond-
ent’s counsel argued that the Union did not need copies of Arti-
cle 2, Section 8 agreements with any other local unions regard-
ing the transportation of used cars, auction cars, secondary
market cars, and/or rental cars (item 15 of the February 11 re-
quest) because the Union had four such agreements in its pos-
session. Tr. 69–71.
DISCUSSION AND ANALYSIS
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 record as a whole. Double D Con-
struction 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 generally incorporated into the findings
of fact set forth above.

8 The remainder of the information requests from March 3 and Re-
spondent’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.
10 The information attached to Respondent’s April 10 letter was re-
lated to information requests that are not at issue in this case.
JACK COOPER HOLDINGS CORP. 21
Only one witness testified at the hearing: Union President
Kenneth Zuckerman. Most of Zuckerman’s testimony con-
cerned 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 president. I found Zuck-
erman 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 Zuck-
erman’s testimony.
B. Respondent Violated the Act by Failing and Refusing to
Provide Requested Information to the Union
In its information request, the Union sought information re-
garding: the number of employees used by Respondent in its
carhaul operation; a list of trips pulled or leased (or brokered or
in any 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 affili-
ate and, if so, a list of new car traffic bid (or awarded) and cop-
ies of the contracts for these bids (or awards) with any confi-
dential or proprietary information redacted; whether Respond-
ent has any Article 2, Section 8 agreements with any local un-
ion regarding the transportation of used cars, auction cars, sec-
ondary 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 re-
garding such traffic; a list of all 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.
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 consider-
ations of relevancy, the obligation arises from the operation of
the Act itself. Ellsworth Sheet Metal, 224 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 pre-
sumptively relevant. When a union seeks information concern-
ing employees outside of the bargaining unit, there is no pre-
sumption 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 arbitra-
tion. United Technologies Corp., 274 NLRB 504, 508 (1985).
If a union’s information request is ambiguous or concerns non-
unit employees, this does not excuse an employer’s blanket
refusal to comply. Keauhou Beach Hotel, 298 NLRB 702, 702
(1990). It is well-settled that an employer may not simply re-
fuse 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.
Processing grievances is, as argued by the General Counsel
and the Union, clearly a responsibility of a union, and an em-
ployer must provide information requested by the union for the
purposes of handling grievances. United-Carr Tennesse., 202
NLRB 729 (1973). The legal standard concerning just what
information must be produced is whether or not there is “a
probability that such data is relevant and will be of use to the
union in fulfilling its statutory duties and responsibilities as the
employees’ exclusive bargaining representative.” Bohemia,
Inc., 272 NLRB 1128 (1984). The Board uses a broad, discov-
ery-type standard in determining relevance in information re-
quests and potential or probable relevance is sufficient to give
rise to an employer’s obligation to provide information. Shop-
pers 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).
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 Re-
spondent was violating the terms of NMATA and the WPA.
The Board 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
nonunion carriers. Examining agreements Respondent had
with other carriers and other local unions, lists of trips, and lists
of drivers or contractors Respondent used to perform carhaul
work would allow the Union to determine Respondent’s com-
pliance or noncompliance with NMATA and the WPA. Infor-
mation concerning Respondent’s anticipated position at arbitra-
tion that certain work was not carhaul work, a position it raised
at a local hearing on the grievance, would be relevant to wheth-
er or not Respondent violated NMATA and the WPA. Thus, I
find that the information sought by the Union was necessary to
ascertain the 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 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
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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). 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 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 infor-
mation. Dover Hospitality Services, Inc., 361 NLRB 906, 906,
fn. 1 (2014), citing Columbia University, 298 NLRB 941, 945
(1990) (an employer must respond to a union’s request for rele-
vant information within a reasonable time, either by complying
with it or by stating its reason for non-compliance). As of the
date of the hearing, 9 months after the Union’s initial infor-
mation 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 confidential or proprietary in its brief,
however, the subject of a nondisclosure agreement was brought
up numerous times during the trial. To the extent that Re-
spondent claimed that some of the information sought was con-
fidential 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).
The Board balances a union’s need for information against
any legitimate and substantial confidentiality interest estab-
lished 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 signif-
icance as to outweigh the union’s need for the information.
Jacksonville Area Assn., 316 NLRB 338, 340 (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) (em-
ployer’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 for-
ward with an appropriate accommodation. Respondent pre-
sented no evidence at the hearing regarding the alleged confi-
dential or proprietary nature of the information sought. How-
ever, examining the 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 satis-
fy Respondent’s duty to bargain with the Union in good faith
over an appropriate accommodation.
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 information
by other means or from another source does not alter or dimin-
ish the obligation of an employer to furnish relevant infor-
mation. 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 Re-
spondent 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 whether other, simi-
lar 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 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. 11.) In Detroit Edison Co.,
the Board overturned a judge’s decision finding that an em-
ployer violated Section 8(a)(5) and (1) of the Act. The Detroit
Edison Board noted that the Union was 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
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 established that the burden of proof of
proving an affirmative defense lies with the party asserting it.
Marydale Products, Co., 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 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.
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);
JACK COOPER HOLDINGS CORP. 23
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 116 fn. 2 (2014). 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 bar-
gaining representative, TNATINC, investigated Respondents’
use of Jack Cooper Logistics for brokering used car traffic and
found no violation of the parties’ collective-bargaining agree-
ment. 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.
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 inescapably
grounded in events predating the limitations period.” Machin-
ists Local 1424 v. NLRB, 362 U.S. 411, 422 (1960). The evi-
dence 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 Feb-
ruary 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 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.
In sum, I found no merit to any of Respondent’s affirmative
defenses. Moreover, I have found that the General Counsel has
established that Respondent violated Section 8(a)(5) and (1) of
the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
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 affect-
ing commerce within the meaning 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 un-
fair 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.
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
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 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) 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 direct-
ly or through Jack Cooper Transport, Jack Cooper Holdings, or
any affiliate of Jack Cooper Holdings; (5) If Jack Cooper Lo-
gistics, 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 [number (4)] and Jack Cooper Logistics, LLC
was awarded new car traffic from a manufacturer or other enti-
ty 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 infor-
mation 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 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 Auto-
motive 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 and a list of
the vehicles transported; (12) Any documentation, memoran-
dum 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 con-
cerning Jack Cooper Logistics or one of its subsidiaries.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11

11 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.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
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
(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 exclu-
sive collective-bargaining representative of Respondent’s em-
ployees in the classification of work covered by the National
Master Transporters Agreement, effective June 1, 2011, to Au-
gust 31, 2015, and supplements thereto, but excluding supervi-
sory, 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish the Union with the following information it re-
quested in its February 11, 2015, and March 3, 2015 letters, and
as modified in its March 26, 2015 letter: (1) 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; (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) 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 direct-
ly or through Jack Cooper Transport, Jack Cooper Holdings, or
any affiliate of Jack Cooper Holdings; (5) If Jack Cooper Lo-
gistics, 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 [number (4)] and Jack Cooper Logistics, LLC
was awarded new car traffic from a manufacturer or other enti-
ty 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 infor-
mation 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 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 Auto-
motive 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 and a list of
the vehicles transported; (12) Any documentation, memoran-
dum 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 con-
cerning Jack Cooper Logistics or one of its subsidiaries.
(b) Within 14 days after service by the Region, post at its fa-
cilities 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 Re-
gion 9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees 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 9 a sworn certification of a re-
sponsible 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
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

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 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.”
JACK COOPER HOLDINGS CORP. 25
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
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, Ken-
tucky, 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, re-
strain, 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.
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.