741 F.2d 882 (6th Cir. 1984), 83-5248, Seegull Mfg. Co. v. N.L.R.B.

Docket Nº:83-5248.
Citation:741 F.2d 882
Party Name:SEEGULL MANUFACTURING CO., Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.
Case Date:August 28, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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741 F.2d 882 (6th Cir. 1984)

SEEGULL MANUFACTURING CO., Plaintiff-Appellee,

v.

NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.

No. 83-5248.

United States Court of Appeals, Sixth Circuit

August 28, 1984

Argued April 10, 1984.

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Aileen A. Armstrong, Asst. Gen. Counsel for Special Litigation, N.L.R.B., Margery Lieber (argued), Elaine Patrick, Washington, D.C., John F. Harrington, N.L.R.B., Memphis, Tenn., for defendant-appellant.

John P. Scruggs, (argued), Bowling & Scruggs, Memphis, Tenn., for plaintiff-appellee.

Before KEITH and KRUPANSKY, Circuit Judges, and REED, District Judge. [*]

KRUPANSKY, Circuit Judge.

The National Labor Relations Board (N.L.R.B./Board) has appealed the district court's decision to award attorney fees to the plaintiff, Seegull Manufacturing Company (Seegull), in this proceeding under the Freedom of Information Act. This court's previous opinion in this case, issued June 1, 1984, 735 F.2d 971, is vacated and the instant decision is issued in its stead.

The facts are not in dispute. On December 28 and 30, 1981, the Board concluded unfair labor practice charges against Seegull filed, respectively, by former Seegull employees Margie Gilley (Gilley) and Lonnie Stanford (Stanford). Subsequently, Gilley instituted an Equal Pay Act complaint against Seegull alleging that she had performed work substantially equal to Stanford's but had received unequal pay.

To assist in its defense to Gilley's civil action, Seegull desired to obtain affidavits submitted by Stanford and Gilley to the Board during the investigation of their respective unfair labor practice charges. On April 29, 1982, Seegull requested the documents from the Board pursuant to the F.O.I.A., 5 U.S.C. Sec. 552(a)(3), and 29 C.F.R. Sec. 102.117(c)(1) of the Board's regulations. On May 7, 1982, the Board's Regional Director denied the request. The denial was based on alternative rationales explained by the Regional Director as follows:

The above cases, Nos. 26-CA-9459 [Stanford] and 26-CA-9486 [Gilley], were closed by this Region on December 30,

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1981, and December 28, 1981 respectively. Pursuant to the General Counsel's FOIA Guidelines in Closed Cases, 100 CRR 122, we are precluded from disclosing the requested materials prior to the expiration of the six month buffer period. Accordingly, I have determined that the material you requested is privileged from disclosure.

In addition, I have determined that the information requested by you is privileged from disclosure pursuant to Exemptions 7(A), (C) and (D) of Section 522(b) [552(b) ] of the [F.O.I.A.].... I have determined that there is no reasonably segregable portion of the exempted material which can be made available to you.

On May 25, Seegull timely appealed the Regional Director's determination to the N.L.R.B. General Counsel. On June 16, the General Counsel affirmed the Regional Director's decision. However, the General Counsel did not refer to the statutory exceptions, but reiterated reliance on the agency's guidelines:

Your appeal from the Regional Director's refusal to furnish information you had requested by letter dated April 29, 1982 has been carefully considered.

The appeal is denied substantially for the reasons stated in the Regional Director's letter dated May 7, 1982. Specifically addressing your arguments on appeal, since the cases were closed by withdrawal of the charges on December 28 and 30, 1982, a six-month buffer period protects against disclosure of the documents you seek. In addition, the fact that Ms. Gilley has brought suit does not waive her interest in confidentiality. Section 6(d) of the Fair Labor Practice Standards Act of 1938 [Fair Labor Standards Act of 1938], in which sex-based discrimination in the...

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