Davis v. Braswell Motor Freight Lines, Inc.

• Decision Date: 21 July 1966
• Docket Number: No. 22513.,22513.
• Citation: 363 F.2d 600
• Parties: Elmer P. DAVIS, Regional Director, Sixteenth Region, National Labor Relations Board, Appellant, v. BRASWELL MOTOR FREIGHT LINES, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

363 F.2d 600 (1966)

Elmer P. DAVIS, Regional Director, Sixteenth Region, National Labor Relations Board, Appellant, v. BRASWELL MOTOR FREIGHT LINES, INC., Appellee.

No. 22513.

United States Court of Appeals Fifth Circuit.

July 21, 1966.

Gary Green, Atty., NLRB, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Lawrence M. Joseph, Atty., National Labor Relations Board, for appellant.

Allen P. Schoolfield, Jr., Dallas, Tex., T. S. Christopher, Ft. Worth, Tex., Donald Lee Cotton, El Paso, Tex., Christopher & Bailey, Fort Worth, Tex., School-field & Smith, Dallas, Tex., for appellee.

L. N. D. Wells, Jr., Mullinax, Wells, Mauzy, Levy & Richards, Dallas, Tex., amici curiae, for Teamsters Locals 745 and others.

Before GEWIN and THORNBERRY, Circuit Judges, and WEST, District Judge.

THORNBERRY, Circuit Judge:

This appeal arises out of the District Court's order compelling Elmer P. Davis, Regional Director of the Sixteenth Region of the National Labor Relations Board, to testify and produce certain documents in compliance with a subpoena issued on behalf of Braswell Motor Freight Lines, the defendant in an action before the District Court brought by a number of Teamsters Union locals. The Regional Director resists that order on the basis that (1) Section 102.118 of the Board's Rules and Regulations¹ forbids a subordinate employee of the Board to disclose official information without the prior written consent of the General Counsel, (2) the subpoenaed material is "irrelevant, immaterial, and incompetent" in the suit between the Teamsters and Braswell, and (3) the subpoenaed documents are privileged.

We must first review briefly the factual context of the District Court's action. Nine Teamsters local unions brought suits against Braswell alleging that as to a portion of its operation Braswell had breached its obligations under the National Master Freight Agreement to which all the litigants were parties. One of the defenses asserted by Braswell referred to Case No. 16-CA-1648 which was then before the National Labor Relations Board, the outcome of which, Braswell alleged, would be "dispositive of the issues concerning the questions of representation of employees of Defendant." In connection with this and related defenses, Braswell secured the issuance of the subpoena directing Regional Director Davis to appear "to testify on behalf of Defendant at the taking of a deposition in the above entitled action pending in the United States District Court for the Western District of Texas and bring with you all documents, memoranda, or instructions pertaining to requests of the Regional Director of the Sixteenth Region of the National Labor Relations Board for advice or instructions from the office of the General Counsel of the National Labor Relations Board, Washington, D. C. relating to case No. 16-CB-17 and any and all documents, memoranda or analysis pertaining to advice, instructions or directions of the said Office of the General Counsel to the Regional Director of the Sixteenth Region of the National Labor Relations Board pertaining to Board Cases Nos. 16-CB-17, 16-CA-847, 16-RC-3398, 16-RC-3399, 16-RC-3400 and 16-RC-3401." Davis moved to quash the subpoena on the grounds noted above, and the District Court, after viewing the subpoenaed documents in camera "for determination of privilege and materiality," granted the motion in part and denied it in part. The relevant portion of that order is as follows:

"THEREFORE, IT IS HEREBY ORDERED, ADJUDGED and DECREED, that the Motion to Quash the Subpoena is hereby overruled to the extent that the same may call for the production of testimony or evidence from the National Labor Relations Board concerning findings or determinations by it, if any, whether preliminary, temporary or final, as to whether or not the plaintiffs herein are in fact the bargaining agents for the majority of employees of defendant; and it is further ordered that to the extent said subpoena may call for testimony or evidence concerning any other matter within the knowledge or possession of National Labor Relations Board, said motion to quash is hereby sustained."

Subsequent to the filing of notice of appeal in this case, the Board issued its final decision and order in Case No. 16-CA-1648 (154 NLRB No. 20). Appellant moved this Court to remand the instant proceeding to the District Court for reconsideration of its order in light of the Board's action. The motion was denied on August 30, 1965.

I.

The initial point for our consideration is the failure of Braswell to request the General Counsel's consent to the disclosure of the subpoenaed material as required by Section 102.118 of the Board's Rules and Regulations. This Court discussed the application of 102.118 in N. L. R. B. v. Capitol Fish Co., 5th Cir. 1961, 294 F.2d 868. Judge Wisdom noted that:

"Cases upholding such regulations do not purport to grant an absolute freedom to the executive to prevent use of department papers as evidence. Validation of the regulations rests directly on the theory that as a matter of internal management the head of an agency is authorized to reserve to himself the authority to release the records."

Id. at 873. The Court concluded that:

"An agency has a legitimate and tidy housekeeping objective in centralizing the determinations of when to assert and when not to assert a privilege. That objective is fulfilled when permission is requested from the head of the agency or other proper party."²

Id. at 875 (Emphasis added.) Since the "housekeeping" function is satisfied by a simple request to the appropriate party, the alleged requirement of service of process on the official was rejected as "an additional and unnecessary burden on parties seeking to obtain government records * * * without the slightest compensating improvement in the disposition of justice." Ibid.

In the instant case, Braswell seeks to justify its failure to request use of the documents and the testimony of the Regional Director on the grounds that "such a request would have been an exercise in futility." Approval of such an excuse, even if meritorious in a particular case, would defeat the purpose of the regulation to centralize the function of dispersing Board records in the head of the agency. Because of Braswell's failure to comply with the "simple requirement" of seeking permission, the District Court should have granted appellant's motion to quash the subpoena. N. L. R. B. v. Adhesive Prods. Corp., 2d Cir. 1958, 258 F.2d 403, 406.

II.

Although our opinion could conclude at this point, we deem it proper to consider the validity of the privilege asserted by the appellant in order that the proceedings on remand may be expedited. As noted by this Court in Capitol Fish, even if the head of the department refuses to permit disclosure of the subpoenaed material, the "ultimate determination of the privilege remains with the courts."³ 294 F.2d at 875. We have viewed these documents⁴ and find that they consist solely of communications between the Regional Director and the General Counsel's office. The documents discuss the actions to be taken by the parties to the correspondence and reveal tentative opinions as to the probable validity of various charges made by Braswell and the unions. With the exception of these two categories of information, the documents do not contain any factual information not already well known to the parties. The asserted purpose of the subpoena was to uncover evidence concerning the Board's findings or determinations, whether preliminary, temporary or final, on the status of the unions as representatives of the employees of Braswell. Under the circumstances in this case, we conclude that this objective cannot be satisfied in this manner and that, therefore, the subpoena should have been quashed.

The observations of Justice Reed are particularly relevant to the instant case:

"Here the document sought was intra-office advice on policy, the kind that a banker gets from economists and accountants on a borrower corporation, and in the Federal government the kind that every head of an agency or department must rely upon for aid in determining a course of action or as a summary of an assistant\'s research. In the case of governments, `the administration of justice is only a part of the general conduct of the affairs of any State or Nation, and we think is (with respect to the production or non-production of a State paper in a Court of

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