Kent Corp. v. N.L.R.B.

Decision Date21 April 1976
Docket NumberNo. 74--1710,74--1710
Citation530 F.2d 612
Parties92 L.R.R.M. (BNA) 2152, 78 Lab.Cas. P 11,385 KENT CORPORATION, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD and John S. Irving, in his official capacity as General Counsel of the National Labor Relations Board, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Elliott Moore, Deputy Associate Gen. Counsel, Abigail Cooley, Asst. Gen. Counsel for Special Litigation, Elinor Hadley Stillman, N.L.R.B., Washington, D.C., for defendants-appellants.

C. V. Stelzenmuller, Birmingham, Ala., for plaintiff-appellee.

Lawrence B. Kraus, Labor Relations Counsel, Richard B. Berman, Chamber of Commerce, Washington, D.C., Gerard C. Smetana, Jerry Kronenberg, Julian D. Schreiber, Chicago, Ill., John G. Weinmann, New Orleans, La., for other interested parties.

Appeal from the United States District Court for the Northern District of Alabama.

Before TUTTLE, GODBOLD and GEE, Circuit Judges.

BODBOLD, Circuit Judge:

This is a suit for disclosure of public records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. 1 The documents in issue are 'Final Investigation Reports' prepared by staff members of the NLRB's Tenth Regional Office after they investigated unfair labor practice charges filed against plaintiff Kent. Some of these reports contain marginal notations made by the Regional Director and his staff during a meeting at which they discussed the charges. Kent contends that these documents with their notations, insofar as they constitute decisions by the Regional Director not to issue an unfair labor practice complaint, are disclosable under subsections (a)(2) 2 and (a)(3) 3 of the FOIA. The government contends that the materials are protected from disclosure by Exemptions 5 and 7 4 of the Act. After an in camera inspection, the District Court ordered disclosure. We reverse.

I. The Origins of the Documents in Issue

Many of the issues in this case are governed by a recent Supreme Court decision applying the FOIA to the Board. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (hereinafter Sears). We thus find it apt to begin our discussion with background information quoted from that opinion:

Under the Labor Management Relations Act of 1947, 29 U.S.C. § 151 et seq., the process of adjudicating unfair labor practice cases begins with the filing by a private party of a 'charge,' 29 U.S.C. §§ 153(d) and 160(b); 29 CFR § 101.2; Auto Workers v. Scofield, 382 U.S. 205, 219, 86 S.Ct. 373, 382, 15 L.Ed.2d 272 (281); NLRB v. Indiana and Michigan Electric Co., 318 U.S. 9, 17--18, 63 S.Ct. 394, 399--400, 87 L.Ed. 579 (585). Although Congress has designated the Board as the principal body which adjudicates the unfair labor practice case based on such charge, 29 U.S.C. § 160, the Board may adjudicate only upon the filing of a 'complaint'; and Congress has delegated to the Office of General Counsel 'acting for the Board' the unreviewable authority to determine whether a complaint shall be filed. 29 U.S.C. § 153(d); Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (853). In those cases in which he decides that a complaint shall issue, the General Counsel becomes an advocate before the Board in support of the complaint. In those cases in which he decides not to issue a complaint, no proceeding before the Board occurs at all. The practical effect of this administrative scheme is that a party believing himself the victim of an unfair labor practice can obtain neither adjudication nor remedy under the labor statute without first persuading the Office of General Counsel that his claim is sufficiently meritorious to warrant Board consideration.

In order to structure the considerable power which the administrative scheme gives him, the General Counsel has adopted certain procedures for processing unfair labor practice charges. Charges are filed in the first instance with one of the Board's 31 Regional Directors, to whom the General Counsel has delegated the initial power to decide whether or not to issue a complaint. 29 CFR §§ 102.10, 101.8. A member of the staff of the Regional Office then conducts an investigation of the charge, which may include interviewing witnesses and reviewing documents. 29 CFR § 101.4. If, on the basis of the investigation, the Regional Director believes the charge has merit, a settlement will be attempted, or a complaint issued. If the charge has no merit in the Regional Director's judgment, the charging party will be so informed by letter with a brief explanation of the reasons. 29 CFR §§ 101.8, 102.15, 101.6, 102.19. In such a case, the charging party will also be informed of his right to appeal within 10 days to the Office of the General Counsel in Washington, D.C. 29 CFR §§ 101.6, 102.19.

421 U.S. at 138--39, 95 S.Ct. at 1510--1511, 44 L.Ed.2d at 40--41 (footnote omitted). Thus when the Regional Director believes that the charging party's position does not merit the filing of a complaint, that determination is final, subject only to the limited possibilities for intervention by the General Counsel's office. Such intervention led to the writing of the documents at issue in Sears. In the present case, however, we are solely concerned with procedures at the Regional Offices, where nearly all cases are resolved without the participation of Washington officials. 5

During the spring and summer of 1973, various unfair labor practice charges were filed with the Board's Tenth Regional Office in Atlanta against Kent. Some of the charges were filed by a labor organization and other charges by individual employees of Kent. Donald E. Howard, the Resident Officer in Birmingham, investigated the charges in three of the cases (Nos. 10--CA--10077, --10091, and --10099), interviewing witnesses and gathering documentary evidence. He then wrote a 'Final Investigative Report' summarizing the evidence and recommending disposition of the charges. The report was discussed at a meeting on May 30, attended by Howard; the Regional Director, Walter C. Phillips; and two Regional Office attorneys. As the participants discussed the report, section by section, Phillips gave oral directions as to which alleged violations should be pursued (with a view towards settlement or complaint) and which should be dropped (by inducing a withdrawal of the charge, or by dismissal). Howard, Phillips, and possibly the other attorneys made notes in the margins of their copies of the report. Phillips filed his copy away; 6 Howard gave his to Donald W. Davis, an attorney in the Birmingham office, who drafted a complaint based on some, though not all, of the charges that had been discussed. 7 Before the complaint had been issued, an investigative report on another case (No. 10--CA--10179) was completed by a Board field examiner. Phillips decided that this charge had merit and directed that the cases should be consolidated. The ensuing complaint was issued on June 20.

Another charge was filed against Kent on July 11, and a similar sequence of events followed. Davis investigated and wrote a report on the allegations; he, Phillips, and other attorneys discussed it at an agenda committee meeting, where Phillips decided that some of the charges should be dismissed and other charges included in the complaint. Again both Davis and Phillips made notes on their copies of the investigative reports to reflect the decisions. Davis wrote a 'partial dismissal letter' to the charging party, explaining why some of the allegations would not become the subjects of a complaint. At the same time, using his marked copy of the report, he drafted a complaint based on the remaining allegations. This complaint, consolidated with the previous one, was issued on August 22 and became the basis for subsequent litigation, culminating in NLRB v. Kent Corp., slip opin. p. 2764, 530 F.2d 610 (C.A.5, 1976), a companion case to this one.

During the pendency of the unfair labor practice litigation, on September 24, 1973, Kent sent the Board a written request for documents, invoking the FOIA. Seven categories of records were requested, including the materials now in issue. 8 Upon receiving no response to the request, Kent filed suit in District Court on November 16, and moved for a preliminary injunction three days later.

In support of its motion, Kent set forth its reasons for wanting access to the materials. It alleged that the unfair labor practice investigation had pointed up

arbitrariness and abuse of discretion on the part of Board agents. There were a number of individuals named in the unfair labor practice complaint as having been improperly discriminated against by plaintiff, on facts no different from numerous other individuals who were eliminated from the complaint by amendment or withdrawal approved by the Board. Plaintiff needs the documents . . . in order to determine the rational basis, if any, for selecting those individuals as to whom complaint was issued, since even after the hearing no discernible basis therefor exists.

Kent also claimed that 'the investigation of the unfair labor practices was tainted by hostility (against Kent's president and its counsel), race prejudice, coercion or undue influence on witnesses, and entrapment.' Kent hoped the documents would confirm the attitudes lying behind these alleged indications of improper conduct.

The District Court granted the preliminary injunction. Subsequently, on February 27, 1974, it denied the government's motion to vacate and directed the defendants to produce 'those parts of the investigation reports and the marginal notes which constitute the final decisions to prosecute or not to prosecute.' Defendants appeal from that order.

II. The FOIA--General Principles

The Freedom of Information Act has been discussed by this court several times before. 9 The Act 'establish(es) a general philosophy of full agency disclosure unless information is exempted under clearly delineated...

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