Madeira Nursing Center, Inc. v. N.L.R.B., Region No.9, 77-3370
| Citation | 615 F.2d 728 |
| Decision Date | 25 February 1980 |
| Docket Number | No. 77-3370,77-3370 |
| Parties | 103 L.R.R.M. (BNA) 2707, 88 Lab.Cas. P 11,890 MADEIRA NURSING CENTER, INC., Plaintiff-Appellant, v. NATIONAL LABOR RELATIONS BOARD, REGION NO. 9; Emil C. Farkas, Regional Director, National Labor Relations Board, Region No 9; and John S. Irving, General Counsel, National Labor Relations Board, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Louis J. Finkelmeier, Finkelmeier & Finkelmeier, Cincinnati, Ohio, Kenneth R. Gilberg, Pechner, Dorfman, Wolffe, Rounick & Cabot, Julius M. Steiner, Allan M. Dabrow, Philadelphia, Pa., for plaintiff-appellant.
Earl L. Ledford, Atty., Cincinnati, Ohio, John S. Irving, Gen. Counsel, Kenneth R. Hipp, Anne H. Andrews, Ruah Lahey, N. L. R. B., Washington, D. C., for defendants-appellees.
Before ENGEL, MARTIN and JONES, Circuit Judges.
Plaintiff-appellant, Madeira Nursing Center, Inc., seeks an order directing the National Labor Relations Board to produce certain documents relevant to a union representation election. Specifically, Madeira claims that the Freedom of Information Act (the "Act"), 5 U.S.C. § 552, permits an employer to obtain copies of (a) authorization cards signed by employees who wish union representation and (b) documents pertaining to the Board's preliminary "showing of interest" investigation.
Madeira operates a 98-bed nursing home in Madeira, Ohio. On November 26, 1976, the Communication Workers of America, AFL-CIO ("the Union"), filed a petition which asked the Board to conduct a representation election. In accordance with Board procedure, the petition alleged that at least 30 percent of Madeira's employees desired Union representation. To demonstrate this "showing of interest," the Union offered authorization cards signed by Madeira employees.
The Board sent an agent to investigate the petition. After examining the authorization cards, the agent completed and filed Form 4069, a statistical compilation which analyzed the validity of the cards without revealing the voting preferences of individual employees. The agent also submitted a memorandum report which did disclose the identities of employees who had signed authorization cards.
On December 4, 1976, Madeira informed the Board that it questioned the Union's claim of a 30 percent showing of interest. Emil C. Farkas, Director of NLRB Region 9, scheduled a hearing on the issues raised by the representation petition.
Madeira made a written request to examine the authorization cards, acknowledging its intent to attack the validity of the signatures. Pursuant to the Act, it also sought all documents reflecting the Board's "showing of interest" investigation. Director Farkas responded by asserting that the Act exempted the requested items from disclosure.
On January 11, 1977, Madeira brought an action in federal district court to compel the Board to produce the authorization cards and documents reflecting the "showing of interest" investigation. Madeira also asked the court to restrain the Board from proceeding with a hearing until it complied with Madeira's request for discovery.
After hearing oral argument, the district court refused to issue a restraining order. It did, however, order briefs on the discoverability of the requested material under the Act.
Meanwhile, the Board conducted a regional representation hearing and on May 9, 1977, issued a Decision and Direction of Election. That election, at which Madeira employees rejected Union representation by a margin of 30 to 15, was held on June 10, 1977.
On May 26, 1977, the district court granted summary judgment to the Board and denied relief on Madeira's claim. Madeira appeals.
In its order the district court held that union authorization cards fall within Exemption 6 of U.S.C. § 552 and are, therefore not discoverable. We approve that decision and affirm.
The district court's order did not directly address the questions raised by Madeira's claim to "any documents indicating the Region's final determination of the petitioner's showing of interest or lack thereof." Appellant's request is too general to permit interpretation here. As it stands, that request could encompass an assortment of Board records which might require diverse treatment under the Act. We can decide the applicability of the various Freedom of Information Act exemptions only in the context of specific individual documents. 1 The indeterminate scope of appellant's claim requires us to affirm the district court on this point as well.
Both the 3rd and 5th Circuits have held that union authorization cards are not discoverable under the Act. Pacific Molasses, supra, and Committee on Masonic Homes of the R. W. Grand Lodge, F. and A. M. of Pennsylvania v. NLRB, 556 F.2d 214 (3d Cir. 1977). Since the question is one of first impression in this Court, we offer a brief analysis of the general principles underlying our decision.
The Freedom of Information Act revised the public disclosure section of the Administrative Procedure Act, 5 U.S.C. § 1002. This change reflected a congressional intent to announce "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." S.Rep.No.813, 89th Cong., 1st Sess. (1965). As Judge Bazelon of the United States Court of Appeals for the District of Columbia noted, "(T)he primary purpose of the Freedom of Information Act was to increase the citizen's access to government records." Bristol-Myers Co. v. Federal Trade Commission, 138 U.S.App.D.C. 22, 25, 424 F.2d...
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