American Airlines, Inc. v. National Mediation Bd., s. 272

• Decision Date: 04 December 1978
• Docket Number: Nos. 272,D,381,s. 272
• Citation: 588 F.2d 863
• Parties: 99 L.R.R.M. (BNA) 3450, 85 Lab.Cas. P 10,971, 4 Media L. Rep. 2458 AMERICAN AIRLINES, INC., Appellee, v. NATIONAL MEDIATION BOARD, George S. Ives, Individually and as Chairman of the National Mediation Board, Robert O. Harris and David H. Stowe, Individually and as members of the National Mediation Board, and Rowland K. Quinn, Jr., Individually and as Executive Secretary of the National Mediation Board, Appellants, and International Brotherhood of Teamsters, Airline Division, Intervenor-Appellant. ockets 78-6121, 78-6162.
• Court: U.S. Court of Appeals — Second Circuit

Page 863

588 F.2d 863

99 L.R.R.M. (BNA) 3450, 85 Lab.Cas. P 10,971,

4 Media L. Rep. 2458

AMERICAN AIRLINES, INC., Appellee, v. NATIONAL MEDIATION BOARD, George S. Ives, Individually and as Chairman of the National Mediation Board, Robert O.

Harris and David H. Stowe, Individually and as members of

the National Mediation Board, and Rowland K. Quinn, Jr.,

Individually and as Executive Secretary of the National

Mediation Board, Appellants,

and

International Brotherhood of Teamsters, Airline Division,

Intervenor-Appellant.

Nos. 272, 381, Dockets 78-6121, 78-6162.

United States Court of Appeals, Second Circuit.

Argued Sept. 14, 1978.

Decided Dec. 4, 1978.

Michael H. Dolinger, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Patrick H. Barth, Asst. U. S. Atty., New York City, of counsel), for appellant National Mediation Bd.

Roland P. Wilder, Jr., Washington, D. C. (Robert M. Baptiste and Mimi C. Satter, Washington, D. C., and Richard L. Hartz, Cohen, Weiss & Simon, New York City, of counsel), for intervenor-appellant International Brotherhood of Teamsters.

Peyton H. Moss, Poletti, Freidin, Prashker, Feldman & Gartner, New York City, for appellee.

Andrew E. Zelman, Roger H. Briton, Surrey, Karasik, Morse & Seham, New York City, Wyatt Johnson, Chicago, Ill., for Airline Employees Ass'n, International as amicus curiae.

Before OAKES, GURFEIN and MESKILL, Circuit Judges.

OAKES, Circuit Judge:

This appeal, argued to us with considerable sophistication, presents the fairly simple question whether under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 ¹ the National Mediation Board (the Board) must disclose the number of cards that a union seeking to organize an air carrier's employees submits to the Board. The answer to the question is complicated somewhat by the tortured, not to say obfuscating, legislative history of the FOIA so incisively remarked upon by Kenneth Culp Davis. ² But finding our way through the maze of the legislative history is not as difficult as first appears. We do find the information sought exempt as "commercial . . . information obtained from any person and privileged or confidential" under the fourth exemption to the Act, 5 U.S.C. § 552(b)(4). ³ Accordingly we reverse the judgment of the United States District Court for the Southern District of New York, Kevin T. Duffy, Judge, 453 F.Supp. 430 (S.D.N.Y.1978), which would have required such disclosure.

The Railway Labor Act, 45 U.S.C. § 151 et seq., which since 1936 has covered air carriers, 45 U.S.C. § 181, was enacted, among other reasons, as was its analogue the National Labor Relations Act, to prevent "any limitation upon freedom of association among employees" and to ensure "the prompt and orderly settlement" of labor-management disputes. 45 U.S.C. § 151a. ⁴ Each party has the right to designate its bargaining representative "without interference, influence, or coercion by (the other) party," 45 U.S.C. § 152, Third. ⁵ Under International Association of Machinists v. Street, 367 U.S. 740, 759, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), construing 45 U.S.C. § 152, Fourth, ⁶ it is unlawful for carriers to interfere with an organization of employees or to influence or coerce them in an effort to induce them to join or not to join a labor organization or otherwise to interfere with employees' rights. These prohibitions are similar to those found in the somewhat better-known National Labor Relations Act. ⁷

The Board has two principal duties. First, upon request, it determines and certifies the bargaining representative of any class or craft of air or rail employees, 45 U.S.C. § 152, Ninth. ⁸ It has adopted regulations set out in full in the margin ⁹ describing the procedure by which a party seeking certification as the bargaining representative for a "class or craft" of employees may apply to the Board for an investigation to determine the representation wishes of the employees in the particular class or craft. 45 U.S.C. § 152, Ninth; 29 C.F.R. § 1203.2. Under the regulations the application must show specifically the name or description of the craft or class involved, the estimated number of employees in such craft or class, and the number of signed authorizations submitted from employees in each craft or class. Id., note 9 Supra. Then, After the Board has made its investigation and determined the precise scope of the craft or class involved and whether there has been a "showing of proved authorizations from at least thirty-five percent of the employees in the craft or class," 29 C.F.R. § 1206.2(b), ¹⁰ the Board will authorize an election or determination proceeding. The thirty-five percent minimum requirement is not imposed upon the Board by statute; rather the Board has adopted it as a regulation presumably to avoid frivolous elections and determination proceedings. It is also significant to note that under 29 C.F.R. § 1208.4(b), the Board regulations require it to "treat as confidential the evidence submitted in connection with a representation dispute and the investigatory file pertaining to the representation function." Once the Board certifies a union based on a majority of the votes in an election or as above provided, the parties are obligated to negotiate in good faith on labor-management issues under judicial construction of 45 U.S.C. § 152, Second. See, e. g., Pyzynski v. New York Central Railway, 421 F.2d 854 (2d Cir. 1970). It is only then that the Board's second principal function of providing mediation services to assist in settlement of labor-management disputes, 45 U.S.C. §§ 155, 183, comes into play.

Intervenor-defendant-appellant here, International Brotherhood of Teamsters, Airline Division (IBT), filed an application (sometimes called a petition) for investigation of representation on September 9, 1977. The union sought a determination under the statute and regulations of the representation wishes of passenger service employees of American Airlines (American). A week after the filing the Board, pursuant to its powers under 45 U.S.C. § 152, Ninth, ¹¹ requested from American the number of its passenger service employees and whether they were already represented by a bargaining representative. In reply American provided the information as required but also demanded from the Board under the FOIA the number of authorization cards filed, the dates of such filings, the number of cards filed on each such date, the form or forms of the cards used, and the number of cards filed in each such form. Ultimately the Board did provide American with the date of filing of the cards and the forms of cards but on the basis of Exemptions 4 and 7(A) to the FOIA declined to provide the number of cards either in toto or by form of card. ¹² Because we hold that the forms were exempt under Exemption 4, we omit reference to Exemption 7(A), relating to investigatory records compiled for law enforcement purposes, as to which see our own Title Guarantee Co. v. NLRB, 534 F.2d 484 (2d Cir.), Cert. denied, 429 U.S. 834, 97 S.Ct. 98, 50 L.Ed.2d 99 (1976), and the more recent NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (statements of employees in labor dispute under NLRA held to be exempt as gathered in the course of the Board's investigatory function).

As action on the IBT petition proceeded, American contested the IBT's definition of the appropriate class or craft and requested a hearing on the issue. The hearing commenced in November, 1977, and concluded in March, 1978; although the parties had filed post-hearing briefs at the time this case was argued, the hearing officer had not as yet made any recommendation. Until the examiner makes his recommendation as to the appropriate class or craft and the Board acts upon the recommendation, the application is still "pending," no election will be held, and, obviously, it would be impossible to determine whether the IBT had satisfied the Board's thirty-five percent requirement. Thus, for purposes of this appeal, it is not known whether the Board will order an election in accordance with the regulation above. Nevertheless, American commenced suit to compel the Board to disclose the information denied, and after the filing of appropriate cross-affidavits the district court granted American's motion for summary judgment, holding that the information did not "constitute commercial information in its ordinary sense" within the meaning of Exemption 4 and that the representation investigation was not a "law enforcement" proceeding under Exemption 7.

The affidavits filed by the Board and the union allege that disclosure during an organizing campaign of the number of authorization cards would disadvantage the union in a number of respects, E. g., by giving the employer an incentive to attempt to affect the timing of an election; by enabling the employer to convey the impression that unionization is a lost cause, that the employees should not make the effort, or that impending defeat would entail adverse consequences; or by assisting carrier resistance through the use of small selective layoffs or hirings. The affidavits also refer to raiding by other unions and damage to the union's credibility. American's affidavits disputed these propositions, but in the posture of the case we must accept them as true even though we might take them somewhat with a grain of salt.

As Professor Davis notes, Supra note 2, the legislative history of Exemption 4 is confusing, if not misleading. Nevertheless, the case law has essentially followed the lead of the late Judge Thomas Croake of the Southern District of New York in Consumers Union of United States, Inc. v. Veterans Administration, 301 F.Supp. 796 (S.D.N.Y.1969), Appeal dismissed as moot, 436 F.2d 1363 (2d Cir. 1971), which rejected the argument that noncommercial or nonfinancial information may be exempt if it is simply privileged or confidential and held that "(t)he plain language of this...