Deering Milliken, Inc. v. Irving, s. 76-1221

Decision Date25 January 1977
Docket Number76-1222,Nos. 76-1221,s. 76-1221
Citation548 F.2d 1131
Parties94 L.R.R.M. (BNA) 2358, 80 Lab.Cas. P 11,945, 2 Media L. Rep. 2189 DEERING MILLIKEN, INC., Appellant, v. John S. IRVING, General Counsel, National Labor Relations Board, Appellee. DEERING MILLIKEN, INC., Appellee, v. John S. IRVING, General Counsel, National Labor Relations Board, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Robert O. King, Greenville, S. C. (Robert T. Thompson, Thompson, Ogletree & Deakins, Greenville, S. C., on brief), for appellant in 76-1221 and for appellee in 76-1222.

Elinor Hadley Stillman, Atty., N. L. R. B., Washington, D. C. (John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., William Wachter, Acting Asst. Gen. Counsel, for Sp. Litigation, N. L. R. B., Washington, D. C., on brief), for appellee in 76-1221 and for appellant in 76-1222.

Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.

BUTZNER, Circuit Judge:

This appeal involves a dispute between Deering Milliken, Inc., and the General Counsel of the National Labor Relations Board over the district court's ruling that certain documents are exempt from disclosure under the Freedom of Information Act, 5 U.S.C. § 552. Deering Milliken appeals the court's decision exempting 56 of these documents and contends that all documents in issue should be disclosed. Conversely, the General Counsel contends that the district court erred in allowing disclosure of any documents. We affirm the district court's opinion in part, reverse in part, and remand for reconsideration.

This action is related to NLRB proceedings in which Deering Milliken was found to have violated the National Labor Relations Act. 1 The only remaining issue is the amount of back pay and other losses due approximately 540 wrongfully discharged employees. When it became clear that the amount of back pay was in dispute and that a formal hearing was necessary, the General Counsel issued a back pay specification and notice of hearing, pursuant to 29 C.F.R. § 102.52, which alleged the amount due to each claimant. 2

After the company unsuccessfully attempted to obtain information related to the assembly of the back pay specification through administrative channels and by subpoena, 3 it requested the following documents pursuant to the Freedom of Information Act:

1. All documents containing information relating to the interim earnings of the individual backpay claimants including, but not necessarily limited to, tax records, payroll records, affidavits, statements, memoranda or notes.

2. All documents containing information concerning the search for substantially equivalent or interim employment by the individual backpay claimants including, but not necessarily limited to, affidavits, statements, memoranda or notes.

3. All documents, receipts, statements, memoranda or notes relating to travel, moving, medical or other expenses alleged in the Backpay Specification.

4. All affidavits, statements, memoranda or notes relating to the decisions by individual backpay claimants not to accept reinstatement.

5. The report, "The Darlington Case, The Economics of a Mill Closing" by Professors Robert Thornton and Urban Ozanne including any subsequent reports and supporting evidence not submitted by the employers.

Upon refusal of the General Counsel to supply this information, Deering Milliken filed a complaint under § 552(a)(4)(B) of the Act. 4 Because of the large number of documents involved, the district court directed the General Counsel to provide a descriptive list of the representative documents contained in several claimants' files, as well as a sampling of documents deemed supporting evidence for the two experts' reports. The General Counsel also submitted copies of the documents described on the list for in camera inspection. Upon examination, the court ruled that 56 of the 62 documents were exempt from disclosure by the terms of the Act. This appeal followed.

We preface our discussion of the issues by the following observations. The Freedom of Information Act establishes a general policy of full agency disclosure unless the information requested is clearly exempt under the statute. Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Its purpose is to inform the public about the actions of government agencies. It was not designed to supplement the rules of civil discovery, and Deering Milliken's right to obtain information is neither enhanced nor diminished because of its needs as a litigant. Its access to agency documents must be determined by the public's right to obtain them. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

I

Title 5 U.S.C. § 552(b)(7)(A) exempts from disclosure "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . interfere with enforcement proceedings."

After examining the proffered documents in camera, the district court held:

(T)here has not been and could not be any showing that production of any of these documents would harm or otherwise interfere with the NLRB-DMI back pay proceeding within the meaning of Exemption (7)(A). . . . Indeed, it appears that their production could have only a beneficial effect on the proper resolution of the back pay determination.

The legislative history of the 1974 Amendments indicates that for a document to fall within exemption 7A, the government must show that specific harm might result to its case from disclosure. 5 To satisfy this burden, the General Counsel contends that disclosure will result in earlier and enlarged access to the government's case. He relies on Wellman Industries, Inc. v. NLRB, 490 F.2d 427 (4th Cir. 1974) and the numerous other cases which hold that the Act cannot be utilized to compel premature disclosure of the government's evidence in NLRB enforcement proceedings. See, e. g., New England Medical Center Hospital v. NLRB, 548 F.2d 377 (1st Cir. 1976); Harvey's Wagon Wheel, Inc. v. NLRB, 550 F.2d 1139 (9th Cir. 1976); Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80 (3d Cir. 1976); Goodfriend Western Corp. v. Fuchs, 535 F.2d 145 (1st Cir. 1976); Title Guarantee Co. v. NLRB, 534 F.2d 484 (2d Cir. 1976). In these cases, the courts dismissed suits brought under the Act seeking disclosure of statements given by witnesses to the Board's investigators in the course of enforcement proceedings involving unfair labor practices and representation elections. 6 As grounds for applying the exemption, the courts noted that Board enforcement proceedings might be harmed by the possibility of employer coercion, the likelihood that employees would be inhibited from giving frank statements to the Board's investigators, and the opportunity for a suspect to falsify a defense.

No such potential harm exists with respect to back pay proceedings. Employees are not ordinarily susceptible to employer pressure in a back pay proceeding. The underlying unfair labor practice controversy has already been resolved, and all that remains is the largely objective task of ascertaining the amount of back pay that is due. For the same reason, it is not likely that an employer can fabricate a defense. Recognizing the distinction between an unfair labor practice hearing and a back pay proceeding, we have held that an employer is entitled to fuller discovery in a back pay proceeding. Florence Printing Co. v. NLRB, 376 F.2d 216, 223 (4th Cir. 1967); but cf. J. H. Rutter Rex Mfg. Co., Inc. v. NLRB, 473 F.2d 223 (5th Cir. 1973). While Florence Printing dealt with discovery of interim earnings, it suggests no reason for restricting discovery to that issue only; other evidence pertaining to mitigation of damages should stand on the same footing. The reason for denying disclosure on the ground that it will interfere with the government's case no longer exists. Therefore, exemption 7A is inapplicable.

Parenthetically, we note that the conclusion we reach fully accords with the recommendation of the Chairman's Task Force on the National Labor Relations Board which recently reported: "In back-pay cases, full disclosure should be available concerning information which would tend to verify, contradict, or further clarify the material in the files of the General Counsel." 93 LRR 221, 247 (Nov. 5, 1976).

So there may be no misunderstanding about the scope of this opinion, we reiterate that our denial of a 7A exemption is limited to back pay proceedings. We do not depart from the sound precedent, including our own, which exempts from disclosure investigatory records compiled for representation and unfair labor practice proceedings.

II

The district court sustained the General Counsel's claim that 43 of the 62 documents submitted for in camera review are ex- empt from disclosure under 5 U.S.C. § 552(b)(7)(C). This subsection exempts investigatory records compiled for law enforcement purposes "to the extent that the production of such records would . . . constitute an unwarranted invasion of personal privacy." The exempted documents contained information about individual claimants. Relying on Robles v. EPA, 484 F.2d 843 (4th Cir. 1973), the court declined to balance or compare the claimants' interest in privacy with the public interest in disclosure and denied Deering Milliken's request for disclosure.

After the district court's opinion was released, the Supreme Court ruled that when privacy is asserted as a reason for exemption, Congress intended the courts to balance the private and public interests. Department of the Air Force v. Rose, 425 U.S. 352, 372-73, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Measured by this test, it is apparent that most of the information about individual ...

To continue reading

Request your trial
60 cases
  • Fiumara v. Higgins, Civ. No. 82-403-D.
    • United States
    • U.S. District Court — District of New Hampshire
    • September 30, 1983
    ...as stated in the Joint Conference Report and in Keeney is substantially the same as we announced earlier in Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (4th Cir.1977), where we held that to establish `the confidentiality of the source,' which is, according to Lesar v. United State......
  • Providence Journal Co. v. FBI
    • United States
    • U.S. District Court — District of Rhode Island
    • October 5, 1978
    ...scholars studying governmental policy because they would put the information into a form useful to the public. In Deering Milliken Inc. v. Irving, 548 F.2d 1131 (4th Cir. 1977), a court justified disclosure of workers' private financial records to a corporation in a suit for back-pay, becau......
  • Kilroy v. NLRB
    • United States
    • U.S. District Court — Southern District of Ohio
    • December 16, 1985
    ...L.Ed.2d 159 (1978); Mylan Pharmaceuticals, Inc. v. NLRB, 407 F.Supp. 1124, 1126 n. 3 (W.D. Pa.1976). See also Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1138 (4th Cir. 1977); Kent Corp. v. NLRB, 530 F.2d 612 (5th The Board has cited only two cases that reach a contrary result. Jamco I......
  • Bristol-Meyers Co. v. F. T. C.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 19, 1978
    ...consideration and weighing of the facts is very much a part of his tactical and strategic analysis. See Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1137-1138 (4th Cir. 1977); Kent Corp. v. NLRB, 530 F.2d 612, 623-624 (5th Cir. 1976).24 The district court found that "(t)he Commission('s......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT