American Airlines, Inc. v. National Mediation Bd.

• Decision Date: 05 June 1978
• Docket Number: No. 78 Civ. 385.,78 Civ. 385.
• Citation: 453 F. Supp. 430
• Parties: AMERICAN AIRLINES, INC., Plaintiff, 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 Quinn, Jr., Individually and as Executive Secretary of the National Mediation Board, Defendants, and International Brotherhood of Teamsters, Airline Division, Intervenor-Defendant.
• Court: U.S. District Court — Southern District of New York

453 F. Supp. 430

AMERICAN AIRLINES, INC., Plaintiff, 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 Quinn, Jr., Individually and as Executive Secretary of the National Mediation Board, Defendants, and International Brotherhood of Teamsters, Airline Division, Intervenor-Defendant.

No. 78 Civ. 385.

United States District Court, S. D. New York.

June 5, 1978.

Poletti, Freiden, Prashker, Feldman & Gartner, New York City, for plaintiff; Peyton H. Moss, New York City, of counsel.

Robert B. Fiske, Jr., U.S. Atty. for the Southern District of New York, New York City, for defendants; Michael H. Dolinger, New York City, of counsel.

Roland P. Wilder, Washington, D.C., Cohen, Weiss & Simon, New York City, for defendant-intervenor.

OPINION

KEVIN THOMAS DUFFY, District Judge.

Plaintiff American Airlines, Inc. has brought this action against the National Mediation Board (NMB), its members and its Executive Secretary, seeking to compel that body to furnish it with certain information pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Defendants have refused to reveal this information on the grounds that it is matter allegedly exempt from disclosure under the FOIA. The International Brotherhood of Teamsters, Airline Division (IBT) was permitted to intervene in the action since the information sought by plaintiff is matter filed by IBT with NMB in support of its application for a NMB investigation, which the IBT hopes will eventually lead to its designation as the collective bargaining agent of certain of plaintiff's employees.

Plaintiff now moves for summary judgment, asserting that as a matter of law it is entitled to the information sought; NMB and IBT oppose this motion and cross move for summary judgment. The NMB also moves to dismiss the complaint for failure to state a claim against the individual defendants.

The following facts are undisputed: In September 1977 the IBT filed an application with the NMB for an investigation as to whether employees of American Airlines in the "passenger service" class or craft wished to be represented by the Teamsters. NMB regulations require that such applications be filed on prescribed forms which require an applicant to indicate the number of employees involved and the number authorizing representation, as well as to describe the evidence of representation forwarded to the NMB. Together with the application, IBT submitted employee authorization cards required under NMB regulations. 29 C.F.R. § 1206.2.¹ On September 15, 1977 the NMB requested that plaintiff supply it with certain information to aid in processing the IBT application. Plaintiff furnished that information on September 20, 1977 and, at the same time, sought the following information pursuant to the FOIA: the number of authorization cards filed by the IBT in support of its application, the dates on which the cards have been filed, the number of cards filed on each such date, the form of cards employed by the IBT and the number of cards filed in each form. Defendant Quinn denied plaintiff's request on October 7, 1977 and advised plaintiff that it could appeal this denial to the Chairman of NMB within 30 days. Plaintiff did appeal and on December 6, 1977 the Chairman reversed that portion of Quinn's decision which had denied to plaintiff the form of authorization cards submitted and the dates on which they were submitted. The Chairman affirmed Quinn's determination to withhold the number of authorization cards filed by the IBT and the number of cards supplied on each type of form, based upon exemptions 4 and 7 of the Freedom of Information Act. Thereafter on January 27, 1978 plaintiff filed a complaint seeking a court order compelling the NMB to furnish the requested information.

In addition to the information regarding American Airlines employees, plaintiff, by letter dated November 14, 1977, sought access to all applications for Investigation of Representation Dispute (NMB Form-3) filed by Airline employees since July 4, 1967, in eight specified classifications. The applications were furnished to plaintiff on December 1, 1977; however, that part of the applications setting forth the number of authorizations was deleted. Plaintiff appealed this deletion, whereupon it was advised that since the initial request had specifically exempted authorizations from its coverage, that information had been omitted. It appears, however, that this information was also deemed exempt from the coverage of the FOIA. (See Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment on its Supplemental Complaint at 5). Thereafter, on April 7, 1978 plaintiff submitted its supplemental complaint to include the information sought in its letter of November 14, 1977, and on May 5, 1978 moved for summary judgment on the supplemental complaint, asking the court to consider all the motions together. On May 12, 1978 the NMB advised plaintiff that it was granting its request insofar as it sought information concerning all cases that have been closed by certification or cases closed for any other reason more than two years before the request.² Plaintiff, however, still seeks information as to the cases not falling within these categories, although this reduces to 40 the cases involved.

With the foregoing as background, I turn to examination of the FOIA and the exemptions invoked by defendants. The FOIA has as its primary purpose increasing public access to government records. See Bristol-Myers Co. v. F.T.C., 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938 (1970). Although there are nine exemptions to the act, disclosure is its touchstone and an agency opposing disclosure has the burden of proving the applicability of any particular exemption. Washington Research Project, Inc. v. Department of Health, Education and Welfare, 164 U.S. App.D.C. 169, 175, 504 F.2d 238, 244 (1974). The exemptions, moreover, are to be narrowly construed, id. and, accordingly, uncertainty should be resolved in favor of disclosure.

Defendants rely on sections 4 and 7 in support of their claim that the number of authorization cards filed with the NMB is exempt from disclosure. While the NMB relies particularly on sections 4 and 7(A), the IBT has also raised 7(C) as an applicable exemption.

Exemptions 7(A) and 7(C)

Exemption 7 provides that investigatory records compiled for law enforcement purposes need not be disclosed in certain circumstances. These include the circumstance where such disclosure would interfere with enforcement proceedings, 5 U.S.C. § 552(b)(7)(A), or would constitute an unwarranted invasion of personal privacy, 5 U.S.C. § 552(b)(7)(C). The threshold consideration is whether the number of authorization cards filed by the IBT in support of its application to become a collective bargaining agent amounts to an investigatory record compiled for law enforcement purposes. Defendants argue that NMB's investigation of representation disputes and certification of collective bargaining representatives are essentially the same functions as those performed by the National Labor Relations Board. Accordingly, defendants urge, the decisions finding that the NLRB's records in representation proceedings are investigatory records compiled for law enforcement purposes within the meaning of exemption 7 should control this case. They rely principally upon Wellman Industries, Inc. v. NLRB, 490 F.2d 427 (4th Cir. 1974) a case which broadly defined "law enforcement purposes" in the context of the National Labor Relations Act as follows:

"Whether or not resulting in an unfair labor practice charge, the Board's purpose here was to protect and vindicate rights set out in the NLRA. Though procedures vary, if aimed at enforcement of the NLRA we think they are `for law enforcement purposes'".

Id. at 430. In Wellman an employer sought access to affidavits obtained by an NLRB investigator during his inquiry into Union objections to a representation election held at the employer's facility. The affidavits were not sought until a complaint was issued against the employer charging it with refusal to bargain. The employer's defense was improper certification of the Union and it sought the affidavits in connection with this defense. The Court of Appeals for the Fourth Circuit, affirming the district court, found exemption 7(A) applicable to the facts of that case and fashioned the broad definition quoted above.

More recently, the Court of Appeals for the Third Circuit has come to a contrary view of "law enforcement purposes." Committee on Masonic Homes v. NLRB, 556 F.2d 214 (3d Cir. 1977). In that case the employer, on behalf of its employees, sought access to authorization cards filed in support of a representation petition with the NLRB. Reasoning that the purpose of enforcing the NLRA was not per se a law enforcement purpose, the Court found exemptions 7(A) and (C) inapplicable. "`Law enforcement purposes' must relate to some type of formal proceeding, and one that is pending." Id. at 219. The court noted that a broader view would result in the exemption of any records compiled by the NLRB. See also Donn Products, Inc. v. NLRB, 93 LRRM 2065 (N.D.Ohio 1976). Moreover, it distinguished Wellman and its progeny by noting that they involved situations where the employer seeking access to the authorization cards was involved in an unfair labor practice proceeding at the time of the request. See L'Eggs Products, Inc. v. NLRB, 93 LRRM 2488 (E.D.Cal.1976); NLRB v. Biophysics Systems, Inc., 91 LRRM 3079 (S.D.N.Y.1976). But see Howard Johnson v. NLRB, 96 LRRM 2214 (W.D.N. Y.1977). After reviewing the pertinent case law, as well as the legislative history surrounding exemption 7, see S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965); H.Rep.No. 1497, 89th Cong., 2d Sess. 11 (1966) U.S. Code Cong. &...